Lake v. Emigh

• Decision Date: 03 March 1948
• Docket Number: 8719.
• Parties: LAKE v. EMIGH.
• Court: Montana Supreme Court

190 P.2d 550

121 Mont. 87

LAKE v. EMIGH.

No. 8719.

Supreme Court of Montana

March 3, 1948

Appeal from District Court, Second Judicial District Silver Bow County; Jeremiah J. Yynch, 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. Judgment for plaintiff and defendant appealed.

Judgment affirmed.

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

M. J Doepker and D. Wilbur Zundel, both of Butte, Hennessey & Hennessey of Billings, and Leif Erickson, of Helena, for respondent.

CHOATE Justice.

This is an appeal from a judgment for damages for personal injuries. In considering it the history of the case becomes material. The case was tried in the district court of Silver Bow county in May 1944, resulting in a judgment for plaintiff in the amount of $8,000 from which defendant appealed (Lake v Emigh, Mont. 167 P.2d 575). Upon that appeal the judgment was reversed and the cause remanded for a new trial. The second trial resulted in a verdict and judgment for plaintiff in the amount of $6,000. This judgment is now before us for review on defendant's appeal therefrom.

There is little material difference in the facts established on the first and second trials of the case, thus making applicable the rule of the law of the case (Eliason v. Geil, 116 Mont. 434, 154 P.2d 277) and, unless otherwise indicated the facts commented upon in this opinion are those which appear in the transcript before us on the present appeal. Likewise, plaintiff did not amend her complaint following the reversal of the first judgment. Consequently the issues of fact are identical with those considered on the first appeal except as to the issue of contributory negligence in the use of the ladder which was modified in our former opinion.

One Eli Virta was the owner of three houses on the corner of Lee Avenue and Broadway in Butte. One of these houses faced north on Broadway and was designated as 476 Broadway. The other two houses were duplex dwelling houses facing east on Lee Avenue, which runs north and south. The southernmost of the two duplexes was on the corner of Lee Avenue and an alley that paralleled Broadway. The south apartment of this duplex was No. 21 and the north apartment was No. 23. There was a small passageway between the southern and the northern duplex and the second house also consisted of two apartments numbered 25 and 27. So that there were four apartments, two in each house, numbered from the alley to Broadway as No. 21, 23, 25, and 27 respectively.

The southernmost duplex was occupied by Mrs. Tikkanen in No. 21 and the plaintiff lived in No. 23. Across the passageway in No. 25 lived Mrs. Branson and her mother, Mrs. Kauhanen, and No. 27 was occupied by one Kauppola. In May 1935 the plaintiff and her husband rented the apartment at No. 23 Lee Avenue from Mr. Virta's agent, Mrs. Magda Syren.

In the back yard to the rear of the two duplexes were three clotheslines. One was attached to the rear of apartment. No. 23 and ran diagonally in a southwesterly direction across the yard to a telephone pole on the alley. The second line was attached to the rear of apartment No. 25 and was fastened to the same telephone pole. A short line was attached to the rear of apartment No. 21.

The clothesline at No. 25 consisted of a rope running over pulleys at either end. A small platform was provided to place clothes baskets etc. at the end nearest the house. The record does not reveal the height of the line at the house but the evidence is that it had to be reached by a ladder six or seven feet in height. This ladder was construted of 2 X 4 uprights with 1 X 4 steps. The top of the ladder was nailed to a 2 X 4 affixed to a traditional brick edifice euphemistically called a lavatory. At the top of the ladder was a board eight inches wide and 20 inches long upon which the person using the clothesline could stand while hanging out clothes.

On November 25, 1935, while the plaintiff was hanging clothes on the line affixed to the rear of No. 25 Lee Avenue, the clothesline broke and she fell a distance of six or seven feet to the ground and suffered the injuries of which she is complaining.

Two grounds of negligence were alleged in the complaint. First, that the defendant and his agents permitted the clothesline to become weak and rotten and not in a reasonably safe condition for the use for which it was intended. Second, that defendant permitted the step-ladder by means of which access was had to the clothesline to become loose from its fastenings against the outbuilding and to become unsteady and not in a reasonably safe condition for use. Defendant pleaded contributory negligence of plaintiff as the sole cause of her injuries.

On the former appeal of this case (Lake v. Emigh, supra) we held that so far as the use of the clothesline was concerned the plaintiff was not guilty of contributory negligence simply because she knew the line was old and worn since she had no means of knowing the extent of its decay or that it was not strong enough to withstand ordinary use for its intended purpose. We further held that as to the ladder the plaintiff must be held as a matter of law to have known of its shaky condition and to have appreciated the danger arising from that condition; that therefore plaintiff was guilty of contributory negligence in using the ladder in its shaky condition and had assumed the risk incident to its use. The case was therefore sent back for a new trial at which we directed that the defective condition of the ladder should be eliminated.

Law of the present case. The decision on the former appeal has become the law of this case as to all matters which were directly involved in and considered and determined on said appeal. See Finlen v. Heinze, 32 Mont. 354, 366, 80 P. 918, and cases cited therein. Also Anderson v. Border, 87 Mont. 4, 8, 285 P. 174, 176, in which we said: '* * * as to all points which were directly involved in, and were passed upon, in the former appeal, and which are involved in this case, whether the opinion is right or wrong, it is the law of the case, was binding upon the trial court, and is binding upon us.' Citing Carlson v. Northern Pac. Ry. Co., 86 Mont. 78, 281 P. 913, in which a long array of Montana cases supporting the above rule are cited.

We will now consider the contentions advanced by defendant.

First, the theory of plaintiff's case was that the use of the defective instrumentalities, including both the ladder and the clothesline was the proximate cause of plaintiff's injuries and that since on the first appeal the issue as to the defective condition of the ladder was eliminated from consideration it is 'beyond human power to say' that the breaking of the clothesline alone was the cause of plaintiff's injuries. We are unable to agree with this contention. As we view the record there is evidence which if believed by the jury warranted a verdict for plaintiff on the theory that her injuries resulted from the defective condition of the clothesline and not from the shaky condition of the ladder. The fact should not be lost sight of in this case that however 'shaky' the ladder or its platform, it did not collapse nor give way either before or after plaintiff fell from it. Plaintiff's husband, William Lake, testified that his wife 'was hanging out clothes and the clothesline broke and she fell down from that platform, right down to the boardwalk.' Mr. Lake witnessed the accident. Looking through the door window he saw the clothes fall 'down on the ground.' Witness then went out to see what had happened to his wife and he 'saw her shaking at the top of the step ladder,' and also saw the platform 'shaking just a little bit' and in just a second or two plaintiff fell back to the sidewalk. From the above testimony the jury might well have found that the defective ladder which only 'shook a little bit' had nothing to do with plaintiff's fall but that plaintiff was precipitated to the ground as the sole result of losing her balance when the defective clothesline broke. Plaintiff herself testified that the rope broke as she was hanging up the clothes; that she had hold of the line and was pushing it forward and that when the line broke she 'lost her balance and fell from there.' To the same effect was the plaintiff's testimony on cross-examination. She said 'I lost my balance because the rope broke and there was no place to take hold and that platform was narrow.'

Second that the breaking of the clothesline was not the proximate cause of plaintiff's injuries because of intervening causes, including the narrow platform, lack of any handhold, and the shaking of the ladder, all of which it is claimed broke the sequence of events and were new and independent causes of plaintiff's injuries. If the lack of a handhold, the narrowness of the platform and the 'shaky' condition of the ladder were contributing causes to plaintiff's injuries, it is sufficient to say that defendant was responsible for all of said causes and it is immaterial which of them was the proximate cause of plaintiff's injuries. 45 C.J., section 487, page 924, states the law as follows: 'Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes, and recovery may be had against either or all of the responsible persons, although one of them was more culpable, and the duty owed by them to the injured person was not the same. Where the injury results from two or more causes for all of which defendant is liable, it is immaterial which was the...