Costello v. Simon
| Decision Date | 25 March 1966 |
| Docket Number | No. 36130,36130 |
| Citation | 141 N.W.2d 412,180 Neb. 35 |
| Parties | Edward A. COSTELLO, Appellant, v. Genevieve SIMON, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A motion for dismissal or, in the alternative, for a directed verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and that party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the facts in evidence.
2. Negligence is never presumed and it cannot be inferred from the mere fact that an accident happened.
3. Where the facts adduced to sustain an issue are such that but one conclusion can be drawn when related to the applicable law, it is the duty of the court to decide the question as a matter of law, and not submit it to a jury.
4. While the owner of premises owes the duty to an invitee to exercise ordinary care to have the premises in a reasonably safe condition for use in a manner consonant with the purposes of the invitation, generally, there is no duty on the part of an inviter owner to protect an invitee against hazards which are known to the invitee or are so apparent that he may reasonably be expected to discover them and protect himself.
5. The presence of natural moisture in level, open ground in a residential yard, even though under a natural covering of grass and leaves, does not constitute a trap under the facts in this case nor establish negligence on the part of the defendant.
Eisenstatt, Lay, Higgins & Miller, Omaha, for appellant.
Pilcher, Howard & Dustin, Omaha, for appellee.
Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and KOKJER, District Judge.
This is an action for personal injuries sustained by the plaintiff when he jumped or fell from a ladder placed in position by the defendant against the side of her residence. The district court sustained defendant's motion for dismissal at the conclusion of the testimony and this appeal followed.
Plaintiff, Edward A. Costello, and defendant, Mrs. Genevieve Simon, are next door neighbors in Omaha. The defendant's house is basically one-story frame construction, faces south, and had metal guttering extending along the length of the east and west eaves of the house, approximately 11 feet above the ground. The guttering on the east side of the house was fastened to the eaves by braided wire hangers at intervals of several feet. Along the east side of the defendant's house was a wooden picket fence about 3 feet in height, and 4 feet from the side of the house, running paralled to it. There was a concrete sidewalk along that side of the house, and a strip of ground 8 to 10 inches in width between the east edge of the sidewalk and the picket fence. This ground between the sidewalk and the picket fence was covered with leaves and grass. There had been no rain from the 10th through the 20th of September 1963, but there had been .04 inch on the 21st, .21 inch on the 22nd, .81 inch on the 23rd, and .03 inch on the 24th. There had been no rain since the 24th, but the area was shaded and did not receive much sunlight. There is evidence that the ground was moist and slippery.
On September 27, 1963, while Mrs. Simon was working on the west side of her house, and Mr. Costello was working in his adjoining yard, Mrs. Simon asked him to help her remove the guttering on the east side of her house. Mr. Costello agreed, obtained a pair of wire snips to cut the braided wire hangers which held the guttering in place, and they proceeded to the rear of Mrs. Simon's house on the east side. Mrs. Simon furnished a wooden ladder which was somewhere between 8 and 12 feet long. Mrs. Simon placed the base of the ladder in the area between the sidewalk and the picket fence near the rear or north end of the east side of her house. Mr. Costello mounted the ladder,...
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