Burdette v. Burdette

• Decision Date: 02 October 1962
• Docket Number: No. 12147,12147
• Citation: 147 W.Va. 313,127 S.E.2d 249
• Court: West Virginia Supreme Court
• Parties: Dewey BURDETTE v. Ted BURDETTE.

Page 249

127 S.E.2d 249

147 W.Va. 313

Dewey BURDETTE v. Ted BURDETTE.

No. 12147.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1962.

Decided Oct. 2, 1962.

Syllabus by the Court

1. A person is an invitee when for purposes connected with the business conducted

on the premises he enters or uses a place of business.

2. The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition.

3. The owner or the occupant of premises used for business purposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of actionable negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person.

4. To recover in an action based on negligence the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injuries of which the plaintiff complains.

5. 'In an action for damages for personal injuries, when the material facts are undisputed and reasonable men can draw but one conclusion from them, the question of negligence becomes one of law for the court.' Point 3, syllabus, Cooper v. Pritchard Motor Company, 128 W.Va. 312.

Kay, Casto & Chaney, George S. Sharp, Charleston, for appellant.

Henry McLane, Clay, for appellee.

HAYMOND, Judge.

On April 17, 1961, the plaintiff, Dewey Burdette, recovered a judgment against his younger brother, the defendant, Ted Burdette, for $9,000.00, upon a verdict of a jury, in the Circuit Court of Clay County. Upon the application of the defendant, who seeks reversal, the case is here on appeal.

The accident in which the plaintiff received the personal injuries of which he complains occurred on the morning of February 27, 1960. At that time the defendant was and for some time had been the owner and operator of an automobile repair shop and garage near the Town of Clay, in Clay County. In connection with the operation of his business he kept and maintained a supply of automobile equipment in an attic or second story of the building owned by him, located about fourteen feet above the ground floor of the garage. For a period of several weeks prior to the accident access to the attic or second story was by means of a wooden ladder instead of a stairway which had been previously installed in the building. The ladder was placed on the main floor and extended in an upright position for a distance of about fourteen feet to a beam which supported the floor of the attic. The top of the ladder rested against and was tied to the beam by a small piece of rope.

The visit of the plaintiff to the shop of the defendant was for the purpose of purchasing a rear light for the automobile of the plaintiff. When the plaintiff inquired about the light the defendant asked the plaintiff to go with him to the attic to see if they could locate a light which the plaintiff desired to purchase. The defendant ascended the ladder and entered the attic through an opening between the wooden braces or supports immediately above the top of the ladder. While the defendant was in the attic the plaintiff started up the ladder and when he came to its top he suddenly lost his balance and fell to the floor below. In the fall he sustained severe and permanent injuries to his left wrist and arm and a fracture of his left leg.

The defendant and two other persons, who were at work in the shop, heard the noise caused by the plaintiff's fall to the floor from the ladder but they did not see him when he started to fall or how the fall occurred. Another person in the building heard the fall but did not see it or know how it happened. They immediately came to the aid of the plaintiff who remained on the floor for several minutes, after which he was taken to a hospital in Charlestonfor treatment. While the plaintiff was on the floor after his fall from the ladder he was asked what had happened and one of the workmen heard him reply that he 'misjudged;' and when the defendant asked the plaintiff what caused him to fall the plaintiff replied 'an awkward move.'

The evidence does not disclose that there was any defect in the ladder or in the rope by which its top was tied to the beam. The likelihood that the ladder would move when ascended by the plaintiff was as apparent to the plaintiff as it could have been to the defendant. The plaintiff stated that the ladder and the rope were plainly visible and could have been observed by him but that he did not notice the rope or the manner in which the top part of the ladder was tied until he ascended to the level of the rope.

The evidence shows that the ladder had been in substantially the same position and tied in substantially the same manner from the time it was installed in the building in December 1959 until the time of the accident; that during that period of approximately two months the defendant and several other persons had made frequent use of the ladder; and that no one had been injured by using or falling from it. The manner in which the ladder was tied permitted its top portion to move six to eight inches backward and forward and about one foot to the right or the left along the beam to which it was tied. The plaintiff admitted that he could have seen the position and the condition of the rope and the worn places where the ladder had moved against the beam, and that these conditions were obvious from the floor but that he did not notice them and did not know whether the ladder would or would not move before he used it.

In describing the manner in which he fell from the top of the ladder the plaintiff testified that the foot of the ladder, which was placed on the floor, did not move but that the top of the ladder did move; that 'it kicked out' and moved from behind him; that it then moved to the right; that he put his right foot on the floor of the attic; that when he started to leave the ladder and remove his left foot from it he leaned over to grasp the brace to his right and the ladder 'kicked out'; that he reached for the brace with his right hand; that he did not know what he did with his left hand; and that he 'had just about one half hold' of the brace when he fell. There were no broken rungs in the ladder which was made of cross-pieces attached to a pine wooden frame the sides of which were two inches thick and four inches wide.

At the time of the trial in April 1961 the plaintiff was fifty nine years of age and when injured was an employee of the State Road Commission. He had been a painter for fifteen or twenty years and during that time had had experience in using and working on ladders and scaffolds.

The defendant contends that the evidence fails to establish any negligence upon his part which was the proximate cause of the injuries of the plaintiff, but that if the evidence establishes negligence of the defendant it shows that the plaintiff was guilty of contributory negligence and that he assumed the risk of using the ladder, the position and the condition of which were plainly visible and obvious to the plaintiff.

To reverse the judgment the defendant assigns as error the action of the circuit court (1) in refusing to direct a verdict for the defendant at the conclusion of the evidence; (2) in giving Instructions Nos. 1, 2 and 3, offered by the plaintiff, for the reason that they were binding instructions which failed to negative contributory negligence of the plaintiff; and (3) in refusing to give defendant's Instruction No. 1, which would have directed the jury to return a verdict for the defendant, and defendant's Instructions Nos. 4 and 5, which dealt with assumption of risk and unavoidable accident.

The principal question upon which the decision of this case turns is whether the defendant in maintaining the ladder in the position and the condition in which it was when the plaintiff was injured was guilty of negligence which was the proximate cause of the injuries of the plaintiff. Consideration of the other errors assigned depends upon the determination of this controlling question.

The relationship existing between the plaintiff and the defendant when the plaintiff was injured was that of owner or occupant and invited person. A person is an invitee when for purposes connected with the business conducted on the premises he enters or uses a place of business. Puffer v. The Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145; Cooper v. Pritchard Motor Company, 128 W.Va. 312, 36 S.E.2d 405. The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition. Puffer v. The Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145; Koehler v. Ohio Valley General Hospital Association, 137 W.Va. 764, 73 S.E.2d 673; Cooper v. Pritchard Motor Company, 128 W.Va. 312, 36 S.E.2d 405; Early v. Lowe, 119 W.Va. 690, 195 S.E. 852; Starcher v. South Penn Oil Company, 81 W.Va. 587, 95 S.E. 28; Smith v. Sunday Creek Company, 74 W.Va. 606, 82 S.E. 608; Smith v. Parkersburg Co-Operative Association, 48 W.Va. 232, 37 S.E. 645. The owner or the occupant of premises used for business purposes, however, is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of actionable negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person. Puffer v. The Hub Cigar Store, Inc., 140 W.Va. 327, 84 S.E.2d 145; Gilmore v. Montgomery Ward and Company, 133 W.Va. 342, 56 S.E.2d 105; O'Flaherty v. Tarrou, 130 W.Va. 326, 43 S.E.2d 392; Cooper v. Pritchard Motor Company, 128 W.Va. 312, 36 S.E.2d 405; Denton v. Third Avenue Theater Company, Inc., 126 W.Va. 607, 29 S.E.2d 353; Spears v. Goldberg, 122 W.Va. 514, 11 S.E.2d 532, 12 S.E.2d 513; Hunker...