Ingalls v. Isensee

• Decision Date: 26 January 1943
• Citation: Ingalls v. Isensee, 170 Or. 393, 133 P.2d 614 (Or. 1943)
• Parties: INGALLS <I>v.</I> ISENSEE
• Court: Oregon Supreme Court

170 Or. 393

133 P.2d 614

INGALLS

v. ISENSEE

Supreme Court of Oregon.

Argued January 14, 1943.

Affirmed January 26, 1943.

Rehearing denied February 14, 1943.

Landlord and tenant

1. Where there was substantial evidence from which jury could have found that there was snow on apartment exterior steps for over an hour before plaintiff, a tenant, slipped and fell thereon, and that apartment manager knew or should have known condition of steps at time of accident, court properly refused to grant a directed verdict for owner of apartment for failure of plaintiff to show owner's knowledge of condition of steps at time of accident.

Appeal and error

2. Where defendant failed to plead plaintiff's contributory negligence and did not raise question during trial, defendant could not raise such question for first time on appeal.

Trial

3. A motion of an adverse party for a nonsuit or for a directed verdict must specify grounds therefor.

Appeal and error

4. When a motion for nonsuit or a directed verdict is denied, grounds for motion as stated therein are conclusive on moving party and he may not urge for first time on appeal additional grounds for such motion.

Appeal and error

5. An appellate court will consider only such questions as have been presented to trial court at proper time and in an appropriate manner, and when it appears that question sought to be reviewed was not thus submitted, the presumption that trial court's decision is correct prevails.

  See 3 Am. Jur. 361
                  4 C.J.S., Appeal and Error, § 233
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Action by Clara Ingalls against William Isensee for injuries sustained by plaintiff when she fell on exterior stairway at entrance of defendant's apartment house. From a judgment for plaintiff, defendant appeals.

AFFIRMED. REHEARING DENIED.

Harry G. Hoy, of Portland (Rex Kimmell, of Salem, and Hoy & Prag, of Portland, on the brief), for appellant.

Arthur I. Moulton, of Portland (Moulton & Davis, of Portland, on the brief), for respondent.

BAILEY, C.J.

The defendant, William Isensee, has appealed from a judgment against him and in favor of the plaintiff, Clara Ingalls, for damages for personal injuries sustained by her when she slipped and fell on the exterior stairway at the front entrance of the defendant's apartment house in the city of Portland.

The stairway was about ten feet wide and was set between outer walls of the building. It consisted of thirteen steps and extended from the sidewalk to the first-story entrance. The upper part of the building projected over the stairway, leaving an opening ten or twelve feet high above the bottom step. The steps were made of concrete or cement, with a painted surface, and were slippery at all times, particularly so when wet or covered with snow. There was no hand rail along the sides of the building that formed the walls of the stairway. The lower steps were exposed to the weather, and when the wind came from a westerly direction snow and rain were blown in upon the stairway as high as the sixth or seventh step.

The accident occurred on March 28, 1936. Rain and snow had fallen intermittently during the afternoon of that day. Mrs. Ingalls, a tenant of the apartment house had been away from the building and returned to her apartment about 5 o'clock, at which time there was snow about two inches deep on the lower steps and less deep as the stairway rose. At approximately 6:15 o'clock in the evening Mrs. Ingalls again left the apartment house and went down the exterior stairway at the front of the building. On reaching the third from the bottom step, her feet slipped on the snow and ice on it and she fell and was injured.

The complaint alleges that the steps were "constructed of a smooth, slick material"; that they "were so constructed and maintained that snow and rain would blow in upon the same"; that the defendant "negligently and carelessly caused and permitted snow and ice to fall and accumulate thereupon, and negligently and carelessly failed to remove the same therefrom"; and that the defendant had knowledge of the condition of the steps at the time of the accident. The defendant is further charged with negligence in failing to provide a hand rail along the steps.

After all the testimony was taken, the defendant moved for a directed verdict in his favor, on the ground that the evidence failed to show that he had been notified or had knowledge of the condition of the steps at the time of the mishap. The trial court denied the motion, and the propriety of that ruling is the only question here presented.

Mrs. Harry Wage was the manager of the apartment house and lived in the building. She had been there as manager for about a year prior to March 28, 1936. Her testimony was that she "always kept track of those steps on stormy days". Asked why she did that, she thus testified:

"A. Well, as manager you feel responsible for people going in and out and you want to see that everything is kept in good order. We have children around the apartment there and they invariably throw things around and you got to keep a watch on things.

"Q. On stormy days you always kept a lookout on those steps?

"A. At any time.

"Q. You knew, as a fact, those steps, whenever there was any snow and the wind was blowing that the snow blew right in on those steps?

"A. No; it didn't blow in on them unless the wind was directly in the west.

* * *

"Q.... You have told us you were out on those steps within the half hour before six-thirty looking at them; that is the fact, was it?

"A. I went out to see if the arc light handled by the P.E.P. Company was turned...