Huus v. Ringo
| Decision Date | 24 October 1949 |
| Docket Number | 7115. |
| Citation | 39 N.W.2d 505,76 N.D. 763 |
| Parties | HUUS v. RINGO. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Negligence whether contributory or primary is a question of fact for the jury unless the evidence is such that reasonable minds can draw but one conclusion therefrom.
2. Where an issue in a personal injury action is whether the defendant failed to properly safeguard an elevator shaft that opened off a hallway maintained by a landlord for the common use of tenants, it is not error for the court to read to the jury a city ordinance specifying the manner in which doors to such shafts should be constructed and secured, and to instruct the jury that it is the duty of the landlord to keep a hallway which his tenant is permitted to use in a reasonably safe condition and to guard openings in the hallway through which the tenant or the tenant's invitee may fall and be injured.
3. A property owner owes no duty to a licensee other than to refrain from willfully and wantonly inflicting injuries upon him.
4. Where an employee is permitted to occupy premises of the employer in furtherance of and incidental to the service, the relationship of landlord and tenant does not arise though the agreed value of the use of the premises is deducted from the employee's wage or taken into account as a part of the consideration for which the service is rendered but the mere fact that the relationship of master and servant exists does not preclude the servant from being the tenant of the master and paying rent in whole or in part by services.
5. The relationship of landlord and tenant usually arises when one gives to another temporary possession and use of real property for a reward. That reward may be in the form of labor or services rendered if the parties so agree.
6. It is the duty of the landlord to use ordinary care to keep in reasonably safe condition halls, stairways, and other approaches maintained by him for the common use of his tenants and invitees.
7. An invitation to enter upon premises may be implied from the purposes of the visit and the circumstances surrounding it. Such an invitation will usually be inferred where the visit is of common interest or mutual advantage of the parties and where one goes upon the premises of another in the common interest or mutual advantage of himself and the tenant he is there by the implied invitation of the tenant.
8. Under the facts set forth in the record and in this opinion it is held that the plaintiff at the time of his injury was upon the defendant's premises as an invitee of the tenant of the defendant.
9. Where the plaintiff in a personal injury action seeks damages for diminution of earning power a proper point of inquiry is his comparative capacity to earn money at the time of and after the injury.
10. Where witness who was an experienced barber testified that he was familiar with the amount of work normally done by barbers, that he had worked in the same barber shop with the plaintiff 'Prior to 1943' and it appears that the plaintiff was injured in October 1946 and went to work for the witness on June 18, 1947. It was error for the court to permit the witness to testify over objection that he was able to form an opinion as to the difference in percentages between the amount of work the plaintiff was able to accomplish in a given time before the accident compared with that after the accident and that he was 30 percent less efficient that before.
11. Where the plaintiff contended that the defendant was negligent in failing to provide proper fastenings for the door of elevator shaft, it was error for the court to permit over objection, testimony to the effect that a lock or fastening was placed upon the door a few days after plaintiff received his injury.
12. Where plaintiff seeks recovery for the loss of future earnings based on the permanence of his injuries expert testimony while competent is not essential. The permanence of his injuries may be inferred from the time they have continued and their seriousness.
13. It is generally held that one who is accidentally injured while proceeding in the dark in a strange place is guilty of contributory negligence as a matter of law, but the same rule does not apply where the person injured was familiar with the premises which were normally safe and was injured through the presence of an unusual and unknown and unanticipated condition.
14. The evidence is examined and it is held that the record now before us does not show that the plaintiff was guilty of contributory negligence as a matter of law.
B. H. Bradford, Minot, for plaintiff and respondent.
Geo A. McGee, Richard McGee, Minot, Francis Murphy, Fargo, for defendant and appellant.
The plaintiff received severe personal injuries as the result of a fall down an elevator shaft late in the evening of October 5 1946, in a building owned by the defendant. In this action he seeks to recover damages for those injuries upon the ground that they were caused by the negligence of the defendant. The defendant admits that he was the owner of the building in which the accident occurred but denies that he was in any way negligent, and further alleges that if the plaintiff sustained any injuries they were due solely to the plaintiff's negligence and want of care which contributed proximately thereto. The jury rendered a verdict in favor of the plaintiff and judgment was entered thereon. This appeal is taken from that judgment and from an order of the district court denying a motion of the defendant for a judgment notwithstanding the verdict or for a new trial.
We approach our task on this appeal mindful of the firmly established rule that negligence, whether contributory or primary, is a question of fact for the jury unless the evidence is such that reasonable minds can draw but one conclusion therefrom. Leonard v. North Dakota Co-op Wool Marketing Ass'n, 72 N.D. 310, 6 N.W.2d 576; Bagg v. Ottertail Power Co., 70 N.D 704, 297 N.W. 774. The first question for us to determine is whether the evidence is sufficient to warrant the jury in finding that the defendant was guilty of negligence which was the proximate cause of the plaintiff's injury. To aid in understanding the facts we reproduce herewith defendant's exhibit B, being a floor plan of the premises.
The building in which the injury occurred was built by the defendant some thirty years prior to the accident. It is twenty-five feet wide and one hundred forty feet long. The front faces west on south main street in the City of Minot. The back or east end abuts on an alley. The building is three stories high with a basement beneath. It is occupied by stores, offices and apartments. One of the offices is occupied by the defendant. The front portion of the main floor is occupied by a hamburger shop known as the Uptown Nook. From the back of this shop a hallway extends some thirty feet to the rear of the building, where a door opens onto the alley. On the south side of the hall is a small two room apartment that was occupied at the time of the accident by Mr. and Mrs. Syverson and their two small children. On the north side of the hall adjacent to the sandwich shop is a storeroom nine feet four inches wide. Next to it is an elevator shaft six feet six inches wide and next to the elevator is a toilet room four feet wide. The remaining space on the north side of the hall is occupied by a stairway leading to the basement. There is also a partition across the hall nine feet four inches from the front end. There is a doorway in this partition three feet by seven, but there is no door. The hall at this point is five feet four inches wide. A door two feet six inches wide opens from the apartment into the hall immediately west of this partition. Less than a foot east of this partition on the north side of the hall is the entrance to the elevator shaft consisting of double doors each two by seven feet. A door two and a half feet wide opens into the toilet immediately east of the elevator shaft.
At about 10:30 on the evening of the accident, the plaintiff and his wife entered the building from the alley, walked through the hallway and entered the apartment of the Syversons. The visit appears to have been a combination of a social call and a business transaction. Syverson was a carpenter and the plaintiff procured his assistance regarding plans for the assembly of some grain bins that the plaintiff had recently purchased. Later that evening the plaintiff and Syverson came out of the apartment into the hall and entered the Uptown Nook through a doorway leading into it from the hall. They returned to the apartment in a few minutes with coffee and sandwiches which were consumed before midnight. The hallway was then lighted. At about midnight the plaintiff had occasion to go to the toilet which was across the hall and some eight feet to his right as he came out of the apartment door. In doing so he must pass the doors to the elevator shaft. The hallway was then completely dark and the plaintiff without opening any doors fell into the elevator shaft and was injured.
The plaintiff charges the defendant with negligence in so maintaining the elevator shaft, that a door thereof was left open, and in not having the shaft doors constructed in compliance with an ordinance of the City of Minot. This ordinance (Section 155, Revised Ordinances City of Minot 1931) and with reference to elevator shafts provides that 'Doors in such shafts shall be of metal or metal covered, having fastenings so placed that they can be opened from the inside of the shaft only and be under perfect control of the elevator operator.'
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The elevator in question was not used to carry passengers, but was used for freight...
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