Lawton v. Vadenais

• Decision Date: 17 January 1956
• Docket Number: No. 9280,9280
• Citation: 84 R.I. 116,122 A.2d 138
• Parties: Walter M. LAWTON v. Philip M. VADENAIS et ux. Ex. . April 10 as of
• Court: Rhode Island Supreme Court

Page 138

122 A.2d 138

84 R.I. 116

Walter M. LAWTON v. Philip M. VADENAIS et ux.

Ex. No. 9280.

Supreme Court of Rhode Island.

April 10 as of Jan. 17, 1956.

James A. McGuirk, Frank L. Martin, Providence, for plaintiff.

William B. Sweeney, Walter J. Hennessey, Providence, for defendants.

FLYNN, Chief Justice.

This action of trespass on the case for negligence was brought by a tenant against his landlords to recover damages for personal injuries sustained from a fall allegedly caused by a defective passageway in the yard outside the demised premises. It was tried before a justice of the superior court, a jury trial being waived, and resulted in a decision for the defendants. The case is here on the plaintiff's exception to that decision.

It appears that some three to four years prior to the accident plaintiff had rented a tenement in a two-family dwelling owned by defendants; that along the outside of the house there was a concrete apron or passageway, adjoining a driveway, which was used in common by plaintiff and other tenants to reach the back door of the house; and that at and from the time of renting to the day of the accident such common passageway was in a broken, unsafe and potentially dangerous condition, especially the portion near the street entrance. It also appears that both plaintiff and defendants knew and appreciated this danger during the entire tenancy; that it was not the only means of ingress from the street to the demised premises; and that the condition complained of was clearly visible at night because of a near-by electric light on the street.

On February 20, 1948 at 11 p. m. plaintiff took his dog out for a walk. The dog was held by a leash. In returning from the street sidewalk defendant proceeded to use the common passageway, which he knew to be in a broken and dangerous condition. He testified that while walking thereon he kept looking at the ground but his foot slipped or caught in some rut, debris or rubble, throwing him off balance and against a large piece of broken concrete and cement so as to break his leg.

The hospital record, which plaintiff introduced in evidence, contains a history of the case, apparently obtained by a nurse from plaintiff or his wife in his presence. This statement as read by the nurse was: 'Patient slipped on ice a few minutes ago. Sustained injury to right lower leg.' A United States weather bureau report for the month of February, together with other evidence, showed there was considerable thawing during the day and freezing temperatures during the night of the accident. In addition there was testimony from plaintiff's doctor that plaintiff told him the accident would not have happened except for the dog, and further testimony that plaintiff admitted to the defendant husband he had slipped on the ice. But in his declaration and testimony plaintiff alleged that his fall was caused by debris and broken concrete or rubble, and that there was no ice.

The trial justice found on the evidence that defendants had 'negligently and knowingly caused and permitted said passageway to become and be in an unsafe and dangerous condition as a consequence whereof--in the circumstances then and there existing--as the plaintiff walked along said passage-way, he lost his footing or balance and fell to the ground * * *.' However, he then went on to discuss certain parts of the evidence which showed that both parties knew of the existing, unsafe and dangerous condition at the time of renting and on the day of the accident, and that this condition may have been rendered more hazardous by the condition of freezing nightly temperatures following a thaw. From these and other factors he then found that plaintiff at the time he fell was not exercising the degree of care ordinarily to be expected of one who was confronted with a known and obvious unsafe condition and who was reasonably careful for his own safety in the circumstances.

The plaintiff first contends that the trial justice misconceived the evidence relating to the ground conditions as shown by the United States weather bureau report. In that connection it appears that the original decision contained a reference to the weather report as of February 28, 1948, which showed considerable precipitation of snow. When the court's attention was called to the fact that the date of the accident was February 20, the trial justice filed a supplemental decision to correct the obvious error. However, on the basis of the weather report of February 20 and the other evidence concerning conditions on that night, he adhered to all his original conclusions. We have examined the transcript, weather report, and the other pertinent evidence, and we cannot say that plaintiff was prejudiced by this correction. The ultimate decision was not...