Harbour-Longmire Bldg. Co. v. Carson
| Decision Date | 05 July 1949 |
| Docket Number | 32277. |
| Citation | 208 P.2d 173,201 Okla. 580,1949 OK 155 |
| Parties | HARBOUR-LONGMIRE BLDG. CO. et al. v. CARSON. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by Ina B. Carson against the Harbour-Longmire Building Company and Harbour-Longmire Company, corporations, for personal injuries. Judgment for defendants. Plaintiff's motion for new trial sustained, and defendants appeal from order granting new trial.
Affirmed.
Syllabus by the Court.
1. On appeal from an order granting a new trial for the single reason that the court had erred in its instructions to the jury, where the record discloses that the instructions were in fact erroneous, the order granting new trial will not be disturbed on appeal.
2. Where a city building ordinance requires handrails to be maintained on stairways in certain buildings, failure of the owner or operator of building to provide stairways with handrails constitutes negligence in itself, or negligence per se, but the question of whether or not such failure to provide handrails was the proximate or contributing cause of an injury is a question of fact for the jury.
Alex Cheek, Jas. C. Cheek, Oklahoma City, for plaintiffs in error.
Cantrell Carey & McCloud, Oklahoma City, for defendant in error.
This action was instituted in the District Court of Oklahoma County by Ina B. Carson against The Harbour-Longmire Building Company, a corporation, and Harbour-Longmire Company, a corporation, to recover damages for personal injuries alleged to have occurred May 15, 1942, by falling into a basement stairway in a store building constructed, owned and operated by defendants as a furniture store. The negligence of defendants is alleged to consist of their failure to comply with the Building Code Ordinance requiring handrails in the stairway, lack of proper lighting and marking and placing on the steps of the stairway the same colored and checkered covering that was maintained on the floor in front of the stairway, and obscuring the entrance to the stairway with various materials. The parties will be referred to as they appeared in the trial court.
The plaintiff was a customer in the store at the time of the accident. She had just walked down a generally-used passageway to a point near the entrance of the stairway, and having given an employee information about a misplaced package, was about to turn and leave the store, when she stepped sidewise or slightly backwards and fell into the basement stairway, resulting in serious injuries.
The defendants answered by general denial, and that plaintiff's injuries were the result of her own negligence in failing to look where she was stepping when she stepped into the stairway. Plaintiff replied to the answer by general denial.
The case was tried to a jury, which returned a verdict for the defendants. Plaintiff filed a motion for a new trial, setting up numerous errors, based principally upon the court's instructions to the jury. The court granted plaintiff a new trial, and stated, as the reason therefor, that it had erred in instructing the jury that none of the Building Code ordinances admitted in evidence had any bearing upon the case, and that the jury should not consider any evidence whatever relative to such Building Codes.
The defendants have appealed from the order and judgment of the court granting plaintiff a new trial, and base their claim for reversal upon the grounds that the court had erred in granting plaintiff a new trial, solely for the reason that the ordinances and so-called 'Building Code' had no application to this particular basement stairway, and that the jury should disregard all evidence relating to such ordinances of Oklahoma City. The defendants claim that the ordinances, or Building Codes, are not applicable to the stairway in question and should not be considered, for the reasons that:
(a) Such ordinances were not sufficiently plead by plaintiff;
(b) The ordinance requiring handrails on such stairways was not enacted until after this stairway was constructed;
(c) The evidence shows that the ordinance of 1926 was not adopted until 1929;
(d) The Building Code introduced was not retroactive; and
(e) The absence of handrails (if required by law) was not the proximate cause of plaintiff's injuries. The plaintiff claimed that the handrails were required by law, and the failure of defendants to provide them constituted negligence in itself, or negligence per se.
The defendants (plaintiffs in error) state on page 7 of their brief that 'only that evidence which relates to the applicability of the City Ordinances is relevant.'
In granting plaintiff's motion for a new trial, the trial court made the following statements:
The trial court has given a clear statement of its reasons for granting a new trial, in the order appealed from. If the action of the court in granting a new trial was within the court's authority as a matter of law, and did in fact constitute reversible error, and the court is not shown to have acted arbitrarily or in abuse of its discretionary powers, there would appear to be no reason for considering any other alleged errors that may have occurred at the trial.
In order to determine whether or not the court reached a proper conclusion in ordering a new trial for the reasons stated by the court,...
To continue reading
Request your trial