Coenen v. Buckman Bldg. Corp.

• Decision Date: 29 September 1967
• Docket Number: No. 40517,40517
• Citation: 278 Minn. 193,153 N.W.2d 329
• Parties: , 28 A.L.R.3d 592 Leo COENEN, Respondent, v. BUCKMAN BUILDING CORPORATION, Appellant.
• Court: Minnesota Supreme Court

Page 329

153 N.W.2d 329

278 Minn. 193, 28 A.L.R.3d 592

Leo COENEN, Respondent, v. BUCKMAN BUILDING CORPORATION, Appellant.

No. 40517.

Supreme Court of Minnesota.

Sept. 29, 1967.

Syllabus by the Court

1. The only question presented in this case is whether there was substantial evidence to sustain the verdict.

2. Where the appealing party rests on its motion for judgment notwithstanding the verdict without asking for a new trial, errors at the trial, whether in the rulings or in the instructions to the jury, cannot be reviewed or considered. The only question for consideration then is whether it clearly appears from the record that the verdict should not stand.

3. It is the law of this state as elsewhere that, speaking generally, a landlord who rents the apartments in his building to various tenants, reserving control of the basements and common approaches, is obligated to use reasonable care to keep the same reasonably safe for the use of his tenants; and it is no defense that someone else is charged by him with, or assumes the performance of, that duty if it be not performed.

4. In the consideration of the question of contributory negligence, each case must be determined by its own particular circumstances. This court has rejected the arbitrary principle that failure to see that which is in plain sight necessarily constitutes contributory negligence as a matter of law without regard to surrounding circumstances.

5. Venturing in the dark does not constitute contributory negligence as a matter of law in all cases, the question being whether the plaintiff thereby unreasonably exposes himself to risk of injury.

6. Where a stranger, with no knowledge of the premises, undertakes to use them when they are in a darkened condition, as in the present case, it is obvious that the basis of the rules governing this class of cases rests upon the failure of the party involved to take reasonable precautions to light the unfamiliar and darkened areas or otherwise to insure his safety while traversing the same. Here, the accident occurred when plaintiff stepped toward a light with the intention of turning it on.

7. The course taken by plaintiff and the helper who accompanied him with a flashlight was not so careless, reckless, or unreasonable as to establish plaintiff's contributory negligence or his assumption of risk as a matter of law. These issues were properly submitted to the jury, and it could have found that the importance of plaintiff's purpose outweighed the probability of his sustaining serious injury and that there was no alternative more reasonable than the one he took.

8. In order to invoke the doctrine of assumption of risk, it is essential that the risk or danger shall have been known to, and appreciated by, plaintiff. No risk is assumed of which plaintiff was ignorant. Notice or knowledge and appreciation of the danger are indispensable to an assumption of risk.

Gordon Rosenmeier and John E. Simonett, Little Falls, for appellant.

George P. Wetzel, Little Falls, for respondent.

OPINION

NELSON, Justice.

Appeal from a judgment of the district court entered pursuant to a jury verdict in favor of plaintiff. Defendant seeks reversal and entry of judgment in its favor. The appeal does not make application for a new trial.

The accident which resulted in this action occurred when plaintiff stepped into an unlighted furance pit located in the basement of defendant's building. Since defendant claims that plaintiff was guilty of contributory negligence as a matter of law and that plaintiff, having awareness of the circumstances existing prior to and at the time of the accident, assumed the risk thereof, the events leading up to the mishap are particularly significant.

If all conflicts in the evidence are resolved in favor of the prevailing party below, the facts appear to be as follows: Plaintiff, Leo Coenen, age 62, was, on the date of the accident here involved, self-employed, operating the Falls Sewing Center in the Buckman Building in Little Falls, Minnesota, where he had been a tenant of the defendant building corporation since June 1, 1964. The record indicates that at approximately 11:15 a.m. on January 28, 1965, while plaintiff was in his shop repairing a sewing machine which he had promised a patron would be finished by noon of that day, an electrical fuse blew out, leaving him without light and power and, therefore, unable to complete his work. There being no fuse box in the shop which he occupied, plaintiff walked to the President's Cafe, another first-floor tenant in defendant's building. Plaintiff inquired of the cafe proprietor, E. J. Newman, a tenant for 12 years, the location of the fuse box in the building. While there appears to be some conflict in the testimony as to whether Newman first suggested that plaintiff look for the fuse box in the hotel upstairs, the fact remains that plaintiff eventually was told by Newman that it might be located in the basement.

Newman testified that he told plaintiff that 'it was rough down there' and that it was dark and like a dungeon. Newman further claims that he told plaintiff that the boiler was down there and there was a pit in front of the boiler. Plaintiff, however, testified that Newman told him only that 'it was rough down there' and denied the other statements Newman claims to have made.

The record also indicates that Newman told plaintiff that he might find the fuse box under the place plaintiff occupied as the sewing center and that if he went down to the basement and explored alone the area underneath his business place he might find it there. Newman did not want to go into the basement because of a bad leg and asked one of the women working for him in the cafe, a Mrs. Smith, the cook's helper, to accompany plaintiff into the basement. She took along a flashlight and they proceeded into the basement to look for the fuse box. Newman told them that they should look 'behind the cage and on the northwest corner and near the boiler.' While Newman states that he told plaintiff about the location of the boiler and the pit connected with it, plaintiff denies that any such statement was made. Mrs. Smith testified that she had been in the basement on several occasions but never near the boiler and that she was not aware of any pit near the furnace. In any event, it was for the jury to determine the conflicts in the evidence.

To get to the basement, Mrs. Smith and plaintiff had to walk through the kitchen of the cafe, along a corridor, and then down the basement steps. Following this route, Mrs. Smith, flashlight in hand, led plaintiff down the basement steps. The stairway was illuminated by light, as was a room at the bottom and the east corridor. Once in the basement, pursuant to Newman's suggestion, they turned right down the east corridor which was cluttered with crates and supplies belonging to the cafe. The ceiling lights were on and plaintiff and Mrs. Smith had no difficulty finding their way along this path.

Having found no fuse box at the end of this hallway (it being directly under the sewing center), they turned around, took a few steps, turned right, and proceeded westerly into what has been termed the 'middle room.' This room was dark. Although there was a light switch at the entrance, which activated all of the lights in the middle room and boiler room, neither was aware of that fact. Instead, Mrs. Smith saw a drop cord from a ceiling light halfway into the room, and, stepping forward, she pulled the cord but the light did not come on. Mrs. Smith again shone the flashlight into the darkness. By this time it was pitch dark, save for the light produced from Mrs. Smith's two-celled flashlight. Mrs. Smith and plaintiff entered the boiler room proper. They tried a light switch and light cord with no results. They continued walking slowly when, from the beam of her flashlight, she noticed another drop cord from the ceiling. With plaintiff remaining still, she walked northwesterly toward this second drop cord, noticing on her left the edge of the furnace pit. She pulled the cord but that light did not work. She said nothing about the pit to plaintiff.

After returning to where plaintiff was standing in the dark, Mrs. Smith shone her flashlight about the area. Shortly thereafter they noticed a fuse box on a pillar by the southeast corner of the boiler pit. Together they walked to the fuse box, plaintiff staying close behind Mrs. Smith who still carried the flashlight. One of the fuse boxes was marked, 'Sewing Center.' Having found an extra fuse on the top of the box, plaintiff changed the fuse, still unaware that the pit was only some 28 inches behind him. None of the lights went on with the changing of the fuse, so Mrs. Smith returned to the two drop cords that they had encountered on their search for the fuse box. Again neither of these lights worked. As she walked back to where plaintiff was standing, plaintiff apparently saw the second drop cord Mrs. Smith had previously tried. He took a few steps northwesterly toward the cord, and in doing so, stepped or fell into the unguarded furnace pit sustaining a fracture of his left foot.

Further testimony indicates that a parttime custodian of defendant's building had been in the furnance room the previous evening and that some of the lights around the furnace were at that time in working order.

An issue, apparently not in dispute in this appeal, was whether plaintiff was an invitee or a licensee, although he was in fact a tenant. The trial court instructed the jury on the different duties owed to a licensee and to an invitee by a possessor of land as contrasted to the duties owed to a tenant. Although plaintiff objected to such instruction, it was apparently given to the jury because plaintiff, it was claimed, had not leased any portion of the basement although there is evidence in the record that he was given to understand that he could store blinds left in his shop in the basement.

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