Doran v. U.S. Building & Loan Ass'n

• Decision Date: 01 April 1933
• Docket Number: 7025.
• Citation: 20 P.2d 835,94 Mont. 73
• Parties: DORAN v. UNITED STATES BUILDING & LOAN ASS'N.
• Court: Montana Supreme Court

20 P.2d 835

94 Mont. 73

DORAN v. UNITED STATES BUILDING & LOAN ASS'N.

No. 7025.

Supreme Court of Montana

April 1, 1933

Rehearing Denied April 18, 1933.

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Action by Mary Doran against the United States Building & Loan Association, a corporation. Judgment for plaintiff, and defendant appeals.

Reversed and remanded with direction.

William Meyer, of Butte, for appellant.

H. J Freebourn, of Butte, for respondent.

ANDERSON Justice.

The plaintiff brought this action to recover damages for personal injuries.

The defendant is the owner of a six-story building located in the city of Butte. On the 29th day of November, 1930, the defendant leased the second, third, fourth, fifth, and sixth floors of this building to one Wells, together with the right to use the stairway, the elevator, and the entryway leading to the portion of the building leased. Wells went into immediate possession of the premises. The lower floor of the building is composed of store rooms, all of which have separate entrances from the one leading to the upper floors. The plaintiff, between 7 and 7:30 in the evening of January 28, 1931, visited the fourth floor of the building in question, and coming down the stairway from the fourth to the third floor she tripped on the metal nosing or edging on the step and fell, and as a result she suffered an inner capsular fracture of the left humerus, and other bruises.

The stairway in question is divided into two parts, with a landing in between. In the middle of the landing is one step, and it is on this step that the plaintiff tripped and fell. Along the edge of the step was a nosing or edging of metal covering approximately three-quarters of an inch in width of the surface of the step, the total width of the nosing being approximately one and one-half inches. The rest of the width is curved over the edge and under the step. It is attached to the step by nails.

The plaintiff testified that after she fell, while sitting in the window adjacent to the landing, she observed that the nosing was bent upward from the surface of the step a distance of approximately one-half inch, and that in going down the steps she caught her heel on this upturned nosing, resulting in her injuries. According to her testimony it was bent upward for a distance of approximately five inches along the surface of the step.

One Mrs. Hawe, a witness for the plaintiff, testified that she passed down the stairway between the third and fourth floors of the building between the 20th and 25th of October, 1930, and that she tripped on the same nosing which was then bent upward approximately one-half inch, for approximately the same distance and in the same location as testified by plaintiff.

A number of witnesses testified in rebuttal on behalf of the plaintiff that they, early in the month of February, 1931, being subsequent to the accident, visited the building, inspected this step, and found the nosing in substantially the same condition as testified to by the plaintiff and Mrs. Hawe.

On the trial of the case defendant made a motion for nonsuit upon numerous grounds, among others claiming that the plaintiff had failed to establish any negligence on the part of the defendant, which was by the court denied. The jury returned a verdict in favor of plaintiff and judgment was entered accordingly. The defendant appeals from the judgment.

This case was tried upon the theory that the defendant was negligent in that the condition of the nosing on the step in question existed prior to the execution of the lease and the surrender of the premises to the lessee, thus bringing the case within an exception to the general rule that the landlord is not responsible for a dangerous condition and injury resulting therefrom existing on the premises when in the exclusive possession of the tenant.

Certain additional theories are advanced by the respondent on this appeal as grounds upon which to sustain the judgment, namely, that under the terms of the lease the tenant only had the right to use the stairways in common with the landlord; also that the landlord reserved the right to supervise, and, in some instances, direct the making of any repairs on the building, although such repairs were to be made at the expense of the tenant. Under any of these theories, without deciding whether any or all of them apply to the facts of this case, it was necessary, in order to hold the defendant for negligence, for the plaintiff to establish a state of facts showing that the defendant had notice, actual or constructive, of the defects causing the injury. Phillips v. Butte Jockey Club, 46 Mont. 338, 127 P. 1011, 42 L. R. A. (N. S.) 1076; McEnaney v. City of Butte, 43 Mont. 526, 117 P. 893.

The record is barren of any direct evidence establishing notice of this condition to the defendant, and the only kind of notice established, if at all, was constructive notice.

It is urged that the testimony of Mrs. Hawe and the presumption namely, "that a thing once proved to exist continues as long as is usual with things of that nature" (Rev. Codes 1921, § 10606, subd. 32), the testimony of the plaintiff at the time of the injury and of other witnesses subsequent to the injury are sufficient to establish prima facie constructive notice to the defendant of the condition...