Kate E. Terrill v. Gladwin A. Spaulding

• Decision Date: 05 October 1948
• Parties: KATE E. TERRILL v. GLADWIN A. SPAULDING ET AL
• Court: Vermont Supreme Court

61 A.2d 611

115 Vt. 342

KATE E. TERRILL v. GLADWIN A. SPAULDING ET AL

Supreme Court of Vermont

October 5, 1948

May Term, 1948.

Negligence.

1. The owner of premises is not liable to a tenant for injuries resulting from a dangerous condition where the dangerous condition is known to the tenant or is obvious to him.

2. Actionable negligence is established only when it appears that a prudent person, situated as the defendant was, would have anticipated that injury might result to a person situated as the plaintiff was, from the acts or omissions of the defendant.

3. Negligence may be established only where there is a breach of duty owed by the party charged to the party injured.

ACTION OF TORT for negligence. Trial by jury, Chittenden County Court, September Term, 1947, Hughes, J., presiding. Verdict and judgment for the plaintiff.

Judgment reversed, and judgment for the defendants to recover their costs.

Arthur & Arthur for the defendants.

Clarke A. Gravel for the plaintiff.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.

OPINION

SHERBURNE

This is an action of tort for negligence, and the only exceptions relied upon are to the denial of defendants' motions for a directed verdict and to set aside the verdict. The grounds of these motions, which are here relied upon, were that the evidence failed to show any breach of duty owed by the defendants to the plaintiff, that the plaintiff assumed the risk and that she was guilty of contributory negligence as a matter of law.

Viewed most favorably to the plaintiff the evidence tended to show the following facts: On or about the middle of December, 1945, the plaintiff rented of the defendants a four room ground floor furnished apartment and immediately moved in, with the understanding that the defendants, among other things, would replace a large worn rug in the living room. The apartment was heated by a pipeless furnace with a register in the center of the living room, and the rug had a hole cut in its center to fit around the register. In the forenoon about three weeks later Mr. Spaulding, one of the defendants, brought another rug. While the plaintiff was lying or sitting on a couch in the living room he took up the register and set it against the wall. She remained in the room while he took up the old rug and started to lay the new one, and then went through another room to the kitchen to attend to some duties there, knowing that he had to cut a hole in the new rug and fit it around the hole in the floor before putting the register back. She returned in 20 to 30 minutes with the intention of speaking to him about the laying and fitting of the rug. He was then kneeling and working upon the rug and made no outcry as she came toward him, stepped upon the rug and then stepped into the hole and down about two feet to the top of the furnace, where she received the injuries involved in this suit. Although he was able to lay and fit the new rug about the hole without a light the room was rather dark because its windows opened upon a large screened in porch. She testified that she did not notice the hole and that it was not easy to see it because of the darkness, that it was not very far from the door to the hole and that she did not realize how near she was to it. There was no evidence that he saw her or was aware that she had come into the room before she stepped into the hole, other than her assertion that he must have been conscious of her coming into the room. In reply to the question: "Knowing the register was taken up and the hole was there, would you expect Mr. Spaulding to have to inform you by making an outcry when you came in?", she testified: "I would naturally have expected when I started toward him and he had placed no barrier, no protection in front of it, and it occupying the position in the floor that it did, I would naturally have expected that he would have spoken to me about it." She further testified: "One naturally would think he might have placed a chair or something like that there so there would be no possibility of walking into it." She admitted stating in a letter: "You see I went into the kitchen, had my mind on other things, came in here forgetting the radiator was up. Stupid of me, perhaps, but anyone might have done it."

Although the plaintiff as a tenant had the right to come into the room, the defendant owed her no duty to warn or prevent her from stepping in the hole, since she knew that the register had been removed and the danger was obvious to her. Dooley v. Economy Store, Inc., 109 Vt. 138, 141, 194 A. 375; District of Columbia v. Moulton, 182 U.S. 576, 21 S.Ct. 840, 45 L.Ed. 1237; Lane v. Lewiston, 91 Me. 292, 39 A. 999; 38 Am Jur Negligence 91; 45 CJ 868.

It may, however, be claimed that Mr. Spaulding should have anticipated that the plaintiff might forget that the register had been taken up, and because of the darkness have failed to notice the hole. We need not decide if she was free from contributory negligence, but will limit our discussion to whether there was any evidence to show that he should have anticipated that she would act as she did, for unless it is shown that a prudent man, situated as Mr. Spaulding was at the time of the alleged default, knowing what he knew or should have known, would have regarded injury to the plaintiff, or one of the class to which she belonged, as likely to result from failure to warn her or to place a barrier before the hole,...