Fulmele v. Forrest

• Decision Date: 25 March 1913
• Citation: 27 Del. 155,86 A. 733
• Court: Delaware Superior Court
• Parties: ANNIE FULMELE v. JOHN FORREST

86 A. 733

27 Del. 155

ANNIE FULMELE v. JOHN FORREST

Superior Court of Delaware, New Castle County

March 25, 1913

Superior Court, New Castle County, March Term, 1913.

ACTION ON THE CASE (No. 8, January Term, 1911) to recover damages for the loss and death of plaintiff's husband, alleged to have been occasioned by the negligence of the defendant, in repairing certain stairs or steps.

Verdict for plaintiff for six cents. Motion for new trial. Refused.

From the testimony, in behalf of the plaintiff, it appeared that the deceased with his family had for about two years, next preceding his death, occupied a certain dwelling house, in the City of Wilmington, as tenant of the defendant owner under a verbal demise without agreement to make repairs. There were stairs or steps leading from the back porch to the yard, and being in a defective, unsafe condition, the wife of the deceased, two or three months before the accident, made a request that they be repaired, which was done, in a temporary manner, by a carpenter sent to make the necessary repairs. There was testimony to the effect that the repairs, so made were satisfactory to the plaintiff's wife, and no complaint was subsequently made; that on the evening of the accident, the deceased started to go down the stairs when one of the steps broke and he fell and ruptured his kidneys; that he died on the third day thereafter. The physician, called in the next morning, found the deceased suffering from ruptured kidneys; and he testified that death resulted from peritonitis in consequence thereof; that it was his opinion a fall, such as the deceased received, could occasion the ruptured condition of the kidneys such as he found.

There was testimony for the defendant, which was not denied, to the effect that the deceased was found in a very intoxicated condition on a cellar door, on one of the streets in the city, and was taken home in a cab, two or three hours before the accident, and placed on a cot in the kitchen. And it was claimed for the defendant that the deceased, in trying to go down the stairs, fell owing to intoxication, thereby breaking the steps because of his weight, causing his injuries, and that his fall was not due to the condition of the steps. No one saw deceased leave the cot to go down the steps, but he was seen immediately after his fall; and there was testimony to the effect that he was not then intoxicated.

PLAINTIFF'S PRAYERS.

While it is not the duty of the landlord to make repairs to demised property, in the absence of a covenant to do so; if he does make such repairs, he is bound to do them in a proper way. 24 Cyc. 116; La Brasca v. Hinchman, 81 N. J. Law, 367, 79 A. 885; Callahan v. Loughran, 102 Cal. 476, 36 P. 835; Gregor v. Cady, 82 Me. 131, 19 A. 108, 17 Am. St. Rep. 466; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Hysore v. Quigley, 9 Houst. 350, 32 A. 960.

DEFENDANT'S PRAYERS.

1. The law does not imply any covenants in a lease. If the landlord does not expressly undertake to keep the premises safe he is not charged with that duty.

2. Where repairs are voluntarily made by the landlord, such fact is not an admission of liability on the part of the landlord to make repairs generally and to keep the premises in repair.

3. If the landlord voluntarily repaired the steps, and if such repairs were defective, then in order to put the landlord in default, it is necessary to show actual notice of the defect, or that it had existed for such a length of time prior to the accident as to charge him with constructive notice.

4. If the deceased by ordinary care could have avoided the consequences to himself, the plaintiff is not entitled to recover. If intoxication of the deceased led to his fall and injury, even though the steps were out of repair, he was guilty of contributory negligence and the plaintiff cannot recover.

The motion is dismissed.

William S. Hilles for plaintiff.

Malloy and Brady for defendant.

PENNEWILL, C. J., and BOYCE, J., sitting.

OPINION

BOYCE, J., charging the jury:

Gentlemen of the jury:--This action was brought by Annie Fulmele, the plaintiff, against John Forrest, the defendant, to recover damages for the death and loss of Andrew A. Fulmele, the husband of the plaintiff, alleged to have been occasioned by the negligence of the defendant.

The declaration contains one count only, and complains, in substance: That whereas, etc., at the time, etc., the defendant was the owner of a certain dwelling house, known as, etc., in this city, and Andrew A. Fulmele, the husband of the plaintiff, was tenant and occupied and resided in said dwelling house under a demise thereof from the defendant. That for some time prior to the twenty-ninth day of October, A. D. 1910, certain steps or stairs leading from the porch of the said dwelling house became and were greatly out of repair, so that the same were unsafe for use by the said Andrew A. Fulmele and others who had occasion to use the same. That on or about the month of August, A. D. 1910, the said defendant did undertake and did make certain repairs to said steps or stairs, whereupon the said plaintiff avers that it then and there became the duty of the said defendant to make such repairs in a careful, skillful and workmanlike manner, so that the said steps or stairs might then and there and thereafter be reasonably safe for persons having occasion to use the same, etc. That on or about the twenty-ninth day of October, A. D. 1910, while the said Andrew A. Fulmele was in the exercise of due care and caution, using the said steps or stairs, the same by reason of their condition as aforesaid broke, and thereby the said Andrew A. Fulmele fell with great force and violence and suffered injuries whereof, on or about the first day of November, A. D. 1910, he died.

The facts disclosed by the evidence are within a narrow scope, and we shall not attempt a statement thereof.

This action is based upon the alleged negligence of the defendant which must be proved, and the burden of proving it rests upon the plaintiff. Negligence is defined to be a failure to observe for the protection of the interest of another person that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. There is no presumption of negligence either on the part of the plaintiff's husband, or of the defendant, from the mere fact that injury resulted to the plaintiff's husband, causing his death. Whether his injuries or death resulted from the negligence of the defendant as alleged, you must determine from all the facts and circumstances of this case as disclosed by the evidence. No claim is made that the defendant landlord undertook at the time of the verbal letting of the dwelling house, occupied by the deceased at the time of the accident, to keep the demised premises in repair. The law is that where the landlord does undertake to make repairs, he is liable for injuries resulting from the negligence of himself or his servants, in making such repairs, and this is true where the landlord is under no obligation to make such repairs, but undertakes to make them voluntarily or gratuitously. 24 Cyc. 1116. So in this case the question is not whether the steps were out of repair and unsafe at the time the request to repair was made, but whether the landlord through his representative or agent made the repairs, and if so, were they performed so negligently and unskillfully as that the deceased was subsequently injured in consequence thereof? If the alleged defective repairs proximately caused the injuries resulting in the death of the plaintiff's husband without his fault contributing to his injuries, your verdict should be for the plaintiff. If the deceased by the exercise of ordinary care could have avoided his injuries, or if his injuries resulted because of intoxication and not from the condition of the steps, the plaintiff cannot recover.

If you find for the plaintiff, it should be for such a sum of money as will reasonably compensate her for any and all damages that she has sustained, or may hereafter sustain, by reason of the death and loss of her husband, governed by what portion of the gross earnings or income the plaintiff would probably have received from the deceased if he had lived.

Your verdict should be for that party in whose favor you find the preponderance or greater weight of the testimony.

Verdict for plaintiff.

Motion by the plaintiff for a new trial on the ground of the inadequacy of the amount of the verdict.

BRIEF OF PLAINTIFF.

The plaintiff's husband was a man in good health, about forty-six years of age, making from fifteen to seventeen dollars a week, at the time he met his death by reason of the accident complained of. The jury in finding a verdict for six cents damages, awarded an amount plainly inadequate to compensate the plaintiff for the damages occasioned by the death of her husband.

Apparently there is no reported case in which a verdict has been set aside by this court on the mere ground of inadequacy of damages.

In Johnson v. Porter, 2 Harr. 325, the court says:

"We shall not now...