Houchin v. Willow Ave. Realty Co.

• Decision Date: 01 May 1970
• Citation: 453 S.W.2d 560
• Parties: Emma B. HOUCHIN, Appellant, v. WILLOW AVENUE REALTY COMPANY and Martin L. Adams and Sons, Inc., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 560

453 S.W.2d 560

Emma B. HOUCHIN, Appellant, v. WILLOW AVENUE REALTY COMPANY and Martin L. Adams and Sons Inc., Appellees.

Court of Appeals of Kentucky.

May 1, 1970.

Robert J. Beale, Mayer, Cooper & Kiel, Louisville, for appellant.

John K. Gordinier, Curtis & Rose, Louisville, for appellees.

REED, Judge.

The plaintiff-appellant, Emma B. Houchin, was injured when she fell while descending basement stairs in an apartment building. The plaintiff, a tenant occupying one of the four apartments in the building, sued her landlord, the defendant-appellee Willow Avenue Realty Company, and its managing agent, the defendant-appellee Martin L. Adams and Sons, Inc. The trial jury found in favor of the plaintiff and awarded her damages in the amount of $2,000. The plaintiff moved for a new trial asserting that the damages awarded were inadequate and that she was entitled to a new trial on the sole issue of damages or alternatively she contended that she was intitled to a new trial on all issues (liability and damages). The defendants, having theretofore moved for directed verdicts in their favor, sought judgment notwithstanding the verdict. The trial judge held the plaintiff contributorily negligent as a matter of law and judgment notwithstanding the verdict was thereafter entered dismissing the plaintiff's action. She appeals. We affirm.

The determinative question in this case is whether or not the plaintiff's alleged contributory negligence was properly a jury issue. The negligence of the defendants is apparent and is actually not seriously contested. The relationship of landlord and tenant existed but this is significant only to the extent that this status delineates in a fashion the rights and duties of the parties inter se. The principles of negligence and contributory negligence are fully applicable.

The apartment house contained a basement that was used in common by the tenants of the four apartments for their convenience. Storage bins and washing machine hookups were provided by the landlord for the use of the tenants. Entrance to the basement was by means of a door located at the rear of the hallway on the first floor. A wooden stairway led from the hallway to the basement. Just inside the basement door there was a light switch that activated a ceiling fixture located over and just to the right of the stairs. There were four other lights in the basement, each one individually activated and located generally in the area of the washing machines and storage bins.

About two weeks before the accident, plaintiff noticed the light at the bottom of the stairs was out. She reported this condition to the landlord's managing agent. The light was not replaced. During the interim period of two weeks, plaintiff made some two or three trips to the basement. She testified that the trips were made only in daylight when the weather was clear and more sunlight present, which provided better illumination through the small windows located in the basement, than was present on the occasion of the accident.

On the morning she was injured, plaintiff and her daughter, Mrs. Wilson, decided to wash some curtains. Mrs. Wilson proceeded down the basement stairway carrying a basket of curtains followed by her mother. Plaintiff took hold of the handrail, with which she was fully familiar, and descended the stairs. She proceeded down the steps successfully until she came to the next to the last step at which place the handrail ended. Plaintiff said that she stepped for the floor because she couldn't see the outside of the remaining step. Apparently by reason of missing the last step, she slipped and fell to the floor. When plaintiff and Mrs. Wilson first reached the basement stairway, Mrs. Wilson tried the light switch, both women noticed the light was out, but Mrs. Wilson proceeded to descend and plaintiff decided to follow her despite the plainly apparent lack of illumination, particularly at the lower portion of the stairway. The day was dark and gloomy.

The defendants were negligent and the plaintiff was aware of their negligence. She knowingly encountered a risk from the known antecedent negligence of the defendants. The plaintiff argues that a tenant has the right to encounter known hazards created by known antecedent negligence of the landlord because of the legal relationship between them and in such instances the question of whether the plaintiff's conduct constitutes contributory negligence is for the jury to determine. She relies principally on the case of Rodgers v. Stoller, 284 Ky. 108, 143 S.W.2d 1047 (1940); she also cites other cases from this jurisdiction involving personal injury claims of tenants against landlords wherein the issue of contributory negligence was held to be for the jury's determination.

The defendants cite cases not involving the landlord-tenant status but which do deal with the invitee or business-visitor relationship such as Layman v. Ben Snyder, Inc., Ky., 305 S.W.2d 319 (1957) and Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405 (1958). These cases declare the general rule to the effect that a person who fails to exercise ordinary care for his own safety is guilty of negligence and his right of recovery for injury is barred. The defendants also cite authority that one who enters darkness, realizing his difficulty in seeing, assumes the risk of unseen hazards that could be seen with the aid of light. Whelan v. Van Natta, Ky., 382 S.W.2d 205 (1964), and Forman v. Silver, Ky., 313 S.W.2d 420 (1958). The language in the principal cases relied on by defendants is cast in terms of 'assumption of risk.'

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