Ida Mae Beaulac v. L. S. Robie And Pearl Slayton

• Decision Date: 02 October 1917
• Parties: IDA MAE BEAULAC v. L. S. ROBIE AND PEARL SLAYTON
• Court: Vermont Supreme Court

102 A. 88

92 Vt. 27

IDA MAE BEAULAC v. L. S. ROBIE AND PEARL SLAYTON

Supreme Court of Vermont

October 2, 1917

January Term, 1917.

TORT FOR NEGLIGENCE. Plea, the general issue. Trial by jury at the June Term, 1916, Caledonia County, Waterman, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Reversed and remanded.

Porter Witters & Harvey, and John W. Redmond for defendants.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.

OPINION

TAYLOR

This is an action for personal injuries received by the plaintiff on premises owned by defendant Robie and occupied in part by defendant Slayton. There was trial by jury with verdict and judgment against both defendants, who reserved joint and several exceptions.

Robie was the owner of two connected buildings, one of which he occupied as a grist mill, while he rented the other to two tenants, an upstairs tenement to one Chaffee and a store on the ground floor to Slayton. Plaintiff's accident occurred on a platform in front of the store rented by Slayton. There were platforms in front of and attached to the two buildings, that in front of the store being one step higher than the mill platform. Slayton occupied under a verbal lease, in which no mention was made of the store platform, and nothing was said as to who should make repairs on the premises. The platform was used by Slayton for receiving and storing goods and by his customers in entering the store. It was used by customers of both Slayton and Robie in going from one place of business to the other and by both defendants in passing back and forth between their places of business. At the time Robie leased to Slayton there was a trap door in the platform furnishing access to a cellar window beneath. The lease to Chaffee was subsequent to that to Slayton. His lease included the tenement upstairs and room in the cellar under the store for wood and coal and gave him the right of access to the cellar through the trap door in the platform. Chaffee occasionally used the trap door to put wood into the cellar, and was the only one who had occasion to use it. Slayton occupied no part of the cellar under his store. Robie testified that he had no occasion to use the platform after his lease to Slayton and made no use of it except to cross it occasionally in going to Slayton's store.

When Chaffee went into possession of the upstairs tenement the trap door consisted of three boards securely fastened together by cleats, and no question was made but that in this condition it was perfectly safe. Later, and several months before plaintiff's accident, Chaffee requested one Dunbar, Robie's miller, to separate the boards so they could be removed singly. In response to this request Dunbar sawed through the cleats, thereby separating the boards. There was no evidence tending to show that in doing this Dunbar was acting within the duties of his employment. It was done without Robie's knowledge or subsequent approval. There was no evidence that Robie knew that the trap door had been changed until after plaintiff's accident. Slayton admitted knowing of it for about six months before the accident and testified that he kept watch of the platform because he knew it would be dangerous if the boards got out of place. Plaintiff's evidence tended to show that her injury was occasioned by stepping upon one of the boards which had become displaced and gave way under her weight precipitating her into the hole through the platform. The accident happened as she was going into Slayton's store to purchase goods.

The following evidence in substance was received under defendants' exception: Soon after the accident Dunbar, of his own notion, fixed the trap door to make it safe. Robie was absent at the time Dunbar started on this work but came to the mill while the work was progressing and made no objection. The work was done "on Robie's time," as he made no reduction from Dunbar's weekly pay on account of the time thus employed. The ground of objection was that repairs after the accident were immaterial in any view of the case. The evidence was received not to show negligence, but as tending to show that Robie and not Slayton was in control of the platform and responsible for its unsafe condition. As the case stood it was material to show which defendant was responsible for the platform being out of repair; and evidence that Robie subsequently, and while the terms of the lease remained the same, made repairs on it, would, in the circumstances, have some tendency to show that he retained control of it. Evidence of a single instance of repairs standing alone might not be sufficient evidence of control. See McLean v. Fiske Wharf and Warehouse Co., 158 Mass. 472, 33 N.E. 499. But it was for the jury to say on the evidence whether Robie made the repairs his own by ratifying Dunbar's action. If they found that the repairs were in effect made by Robie, this fact in connection with the evidence that no mention of the platform was made in the lease to Slayton and the further evidence that Robie gave subsequent permission to Chaffee to use the trap door without consulting Slayton, taken in connection with the fact that at the time the store was leased he retained possession of the cellar to which the door furnished access, made a case for the jury whether Robie did in fact retain possession of and exercise control over the platform. Our cases, including Place v. Grand Trunk Ry. Co., 82 Vt. 42, 71 A. 836, cited by the defendants, are not to the contrary. They go no further than to hold that subsequent repairs are not admissible to show negligence.

At the close of the plaintiff's evidence the defendants moved that she be required to elect which defendant she would proceed against and excepted to the action of the court in overruling the motion. This was not error. The defendants were jointly charged with the tort and could be held jointly or severally liable as the evidence warranted when the case should go to the jury. See Wright v. Cooper et al., 1 Tyl. 425; Moulton v. Moore, 56 Vt. 700.

At the close of the plaintiff's evidence, and again at the close of all the evidence defendant Robie moved for a directed verdict on several grounds, which can be summarized as that there was no evidence in the case tending to show actionable negligence on his part, and excepted to the action of the court in overruling his motion. It was urged in support of this motion that there was no evidence tending to show a duty owed by defendant Robie to the plaintiff nor any shortage of duty; that on all the...