Lake v. Emigh

• Decision Date: 05 February 1946
• Docket Number: 8584.
• Citation: 167 P.2d 575,118 Mont. 325
• Parties: LAKE v. EMIGH.
• Court: Montana Supreme Court

167 P.2d 575

118 Mont. 325

LAKE v. EMIGH.

No. 8584.

Supreme Court of Montana

February 5, 1946

Rehearing Denied April 18, 1946.

Appeal from District Court, Second Judicial District, Silver Bow County; Jeremiah J. Lynch, Judge.

Action by Tyyne Lake against John F. Emigh, as administrator of the estate of Eli Virta, deceased, to recover for injuries sustained by plaintiff while occupying defendant's building as a tenant. From a judgment for plaintiff, the defendant appeals.

Reversed and remanded.

J. F. Emigh and Harlow Pease, both of Butte, for appellant.

M. J. Doepker, of Butte, Joseph P. Hennessey, of Billings, and D. Wilbur Zundel, of Butte, for respondent.

ANGSTMAN Justice.

This is an action for personal injuries.

The complaint charges that plaintiff was a tenant of Eli Virta on November 25, 1935, and as such had the common use along with other tenants of Virta, occupying separate buildings, of a mechanical device and apparatus for hanging clothes to dry that the apparatus consisted of a clothesline running over pulleys fastened between the buildings and outbuildings of the premises leased to her and the other tenants; that as a part of the apparatus Virta provided a ladder with steps and a small platform at the top thereof for placing baskets of clothes and another platform on which the tenants might stand while hanging out clothes; that the ladder was attached to one of the outbuildings; that on the 25th day of November 1935, plaintiff ascended the ladder with a basket of clothes which she placed on the platform and proceeded to hang the clothes in the manner intended; that while so doing the line broke and she fell to the ground, a distance of seven or eight feet, causing the injuries complained of.

The negligence of defendant is alleged to have been as follows That Virta and his agents and employees negligently suffered and permitted the clothesline to become weak and rotten and the ladder to become loose from its fastenings against the out-buildings so that it became unsteady; that they failed to make reasonable inspection of the apparatus and to keep it in reasonably safe condition for its intended use; that Virta and his agents and employees knew or in the exercise of reasonable care should have known of the condition of the clothesline and ladder for several weeks before November 25, 1935, and in sufficient time to make the apparatus safe and secure; that Virta died on February 27, 1942, and that defendant is the administrator of his estate.

The answer admits that Virta was the owner of the property in question on November 25, 1935, and that plaintiff fell while hanging out clothes. It denies the other allegations of the complaint and alleges affirmatively that if the clothesline was rotten and defective and if the ladder was loosened and unsteady, these facts were apparent to plaintiff and that she, without due care for her own safety, used the ladder and clothesline and carelessly leaned and rested her weight upon the clothesline causing it to break and throw her off balance and causing her to fall to the ground and that her own negligence contributed as the proximate cause of her injuries. The reply admits that the clothesline was not designed to support the weight of a human being and denies the other allegations of affirmative matter in the answer.

The evidence introduced by plaintiff on the vital issues of the manner in which she was injured consisted of the testimony of herself and her husband. Plaintiff's husband was asked this question: 'Q. Now then, Mr. Lake, when did you have occasion to observe the ladder and platform before the 25th day of November 1935?' He answered: 'A. During the summer once, my wife went to town and it started to rain and she had her clothes on the line so I went out to take them in and when I took the clothes away from the line, I started coming and I almost fell from the shaking of the platform.'

With reference to the clothesline he said that one of the other tenants in his presence told Mrs. Syren, who was looking after the property of Mr. Virta as his agent, that 'this line is very poor,' you 'should get a new clothes line,' and that Mrs. Syren replied that she would not do so because somebody would steal it.

He said he saw his wife fall. His testimony in that respect was that he saw the clothesline give away, and then 'I looked to the platform and I seen the platform and the ladders shaking and my wife fell to the board walk.' He said she was standing upon the eight inch platform above the ladder when it was shaking. He said the line broke close to the telephone pole. After the accident he examined the ladder and platform. In this connection his testimony was: 'I went out and looked at the platform, and what I noticed then it was very worn, and the toenail from the bottom of one of the ladders was loose and worn, and the ladder and the platform, they were worn too, and the clothes line was very poor.'

He said the nail holes on the ladder were worn so that 'they were almost loose and one toe-nail to the board walk was loose entirely and it was weather-worn so that it was real rotten, the wood.' He said that if you took hold of the ladder and platform, you could shake it. He also testified that the clothesline was worn and that it was 'spliced in two places and very rotten.'

Asked why he didn't advise his wife of the defects which he discovered before the accident, he said he intended to but forgot all about it.

Plaintiff explained her method of hanging out clothes as follows: 'I had to take hold of the clothes line with one hand and push with the other and I had to be careful because the platform was so narrow.'

She said the clothesline was old and worn; that after she got to the top of the ladder on the 25th of November 1935, she took clothes from the basket and 'with my other hand I took hold of the clothes line and started pinning clothes to the line and pushing it forward.' She said she believed the clothesline would hold the clothes that she was hanging at the time. She testified that 'The line broke and the ladder began to shake and I fell. * * * I was pushing the line ahead when it broke,--holding on to it.'

She said there was nothing for her to hold on to after the clothesline broke, 'just that platform where I was standing.'

She testified that the ladder never shook with her on previous occasions though she used it every week. But she said the ladder was old and there was no place to hold on and she was afraid of it every time she used it. She also said that she knew for two months before the accident that the clothesline was old and worn but thought since the other tenants were using it that she was as safe as they were.

Mrs. Branson, another tenant of Mr. Virta, also used the clothesline and ladder and she said anyone using the ladder could see that it was old and worn. She learned it was shaky by using it.

Mrs. Kauhanen, mother of Mrs. Branson, also testified that the ladder was shaky and that there was nothing to hold on to.

At the...