Louisville Gas & Electric Co. v. Nall

• Decision Date: 27 November 1917
• Citation: 178 Ky. 33,198 S.W. 745
• Parties: LOUISVILLE GAS & ELECTRIC CO. v. NALL. [a1]
• Court: Kentucky Court of Appeals

198 S.W. 745

178 Ky. 33

LOUISVILLE GAS & ELECTRIC CO. v. NALL. ^[a1]

Court of Appeals of Kentucky.

November 27, 1917

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Emma Nall against the Louisville Gas & Electric Company and John H. Fleck. Judgment for plaintiff against the company and in favor of Fleck, and the company appeals. Affirmed.

Clarke and Thomas, JJ., dissenting.

Matt O'Doherty, of Louisville, for appellant.

Elmer C. Underwood and Beckham Overstreet, both of Louisville, for appellee.

CARROLL J.

In this suit to recover damages for personal injuries, brought by the appellee, Emma Nall, as plaintiff, against the appellant Louisville Gas & Electric Company and one John H. Fleck, as defendants, there was a verdict and judgment for Fleck and against the gas company for $7,500.

On this appeal by the gas company several errors are assigned as grounds for reversal, and in disposing of them a consideration of the pleadings, especially the petition becomes necessary. It was charged in the petition that--

"the injuries to the plaintiff hereinafter set out were caused by the gross negligence and carelessness of the defendant Louisville Gas & Electric Company and of the defendant John H. Fleck, and by their officers, agents, servants, and employés; * * * that plaintiff sustained the injuries hereinafter set out on or about July 21, 1915; that for several days prior to July 21, 1915, the defendants, by their officers, agents, servants, and employés, had been engaged in work on the gas pipes, gas meters, and gas apparatus in the aforesaid house at Twenty-Fourth and Walnut streets, and that in so doing they from time to time entered a certain closet on the first floor of said property in the possession and occupancy of the plaintiff as aforesaid, and performed various work upon the gas pipes, meters, and other apparatus in said closet, and in so doing left the floor of said closet in a dangerous, unsafe, and defective condition, and left gas pipes protruding from said floor, which said conditions were unknown to the plaintiff; that on or about July 21, 1915, after said defendants had been working in said closet as aforesaid for several days, the plaintiff being unaware of said dangerous conditions, went into said closet, and was precipitated through that portion of the floor which had been left in said dangerous, defective, and unsafe condition by the defendants, and struck herself against the aforesaid pipes, and sustained the injuries herein referred to; * * * that at the times referred to the defendant John H. Fleck was a contracting plumber, and without any request, authority, or direction from the plaintiff or her husband, by his agents, servants, and employés, and also the Louisville Gas & Electric Company, by its agents, servants, and employés, for several days prior to July 21, 1915, had been engaged in work on the gas pipes, gas meters, and gas apparatus in a house the first floor of which was occupied by plaintiff. * * *"

The answers of the defendants traversed the averments of the petition and pleaded contributory neglect.

It is urged that the petition was fatally defective, and consequently the demurrer, as well as the timely motion for a judgment non obstante veredicto, should have been sustained.

We think there can be no serious question that this petition stated a good cause of action against both of the defendants. It alleged that, without any request, authority, or direction from the plaintiff, the servants of these companies entered a closet in the house occupied by the plaintiff for the purpose of doing some work upon the gas pipes and other apparatus in the closet; that in the course of this work they negligently and carelessly left the floor of the closet in a dangerous and unsafe condition; that plaintiff, being unaware of this condition, went into the closet and received the injuries of which she complains.

It seems to us quite plain that if the servants of these defendants, acting for their respective masters, went into a house occupied by Mrs. Nall, as they had a right to do, and carelessly and negligently left a part of the house in a dangerous and unsafe condition, and thereby Mrs. Nall, who was ignorant of the condition in which the premises had been left, sustained injuries, there was a breach of duty upon the part of the defendants that resulted in damages to her, because, when these defendants entered the house for the purpose of making repairs upon fixtures therein, they were under a duty to leave the premises in the condition in which they found them, or at least in a reasonably safe condition. Mrs. Nall had the right to use and enjoy the premises occupied by her, and if these premises, which were in a safe condition, were made dangerous and unsafe by the negligent acts of other parties not her servants, and over whose conduct she had no control, but who had a right to enter her house to do work therein, she could clearly bring an action against them for injuries sustained by her on account of the negligent manner in which they did the work they were engaged in doing.

The petition also specifically states the manner in which the negligent act was committed, so that the defendants were fully and accurately advised by the pleadings of the nature of the negligence charged and the cause of complaint against them.

There is a wide difference between the facts stated in this petition and the facts stated in the petition criticized by the court in the case of Louisville & Portland Canal Co. v. Murphy, 9 Bush, 522. In that case the defect in the petition consisted in the failure to aver that the bridge from which Lucretia Murphy fell to her death was a part of a public thoroughfare under the control of the canal company, or, if a private bridge, that she had been licensed to travel over it under an agreement with the owners to keep the same in repair. In this case the defendants entered a house occupied by the plaintiff to do repairs on fixtures owned by or under their control, and negligently left a part of the house in a dangerous and unsafe condition. We think both the demurrer to the petition and the motion for a judgment non obstante veredicto were properly overruled.

Coming now to the evidence, we find that Mrs. Nall, with her family, occupied as a tenant the first floor of a two-story house in which there was a hall about seven feet wide, extending from the front to the rear door. In this hall there was a stairway leading from the first to the second floor, and on the first floor, under this stairway, there was a closet the width of the stairway and about nine feet long. This closet was closed, but had a door in the end through which persons could enter it. There was also a good floor in the closet, and it was used, as many other like closets are used, by Mrs. Nall and her family for storing articles that are commonly stored in places like this. There was also in this closet some gas fixtures connected with other fixtures in the cellar under the closet floor, and it was these fixtures that the servants of the defendants were engaged in repairing.

It appears that Fleck, a master plumber, at the request of Aldiges, the owner of the house, sent, on July 19, 1916, two of his plumbers, Burkholder and Glenn, to make some changes and repairs in the gas pipes of the building which ran from the cellar to the second floor and up through this closet. To get into the cellar Burkholder and Glenn took up some boards from the floor of the closet, leaving an open space sufficiently large to enable them to get from the closet to the cellar.

Burkholder, who was introduced as a witness by the plaintiff, Mrs. Nall, testifying as to the condition in which they found the floor of the closet, what they did, and how they left it when they quit work that day, said, in substance, that when they first went into the closet the floor was down and they took up a part of it in order to get into the cellar; that when they quit work that afternoon they put back the floor they had taken up and left it as they found it.

Glenn also introduced as a witness by the plaintiff, Mrs. Nall, said, in substance, that when they went into the closet the floor was down and that they took up some of the planks to make an opening large enough to get into the cellar; that when they quit work the afternoon of the day they went there they put the boards back in the same condition in which they found them that morning.

It seems that these plumbers did not finish their work on the 19th, and intended to go back and complete it on the 20th, but for some reason did not return on that day. It appears, however, that on the 20th Fallon and Devenny, two employés of the gas and electric company, were sent, at the request of the owner of the house, to the building by their employer to do some work on these gas fixtures.

Introduced as a witness by and in behalf of Mrs. Nall, Fallon said, in substance, that he and Devenny reached the house about 8 o'clock on the morning of the 20th; that when they went into the closet for the purpose of making some repairs on the fixtures they found that some of the boards in the closet floor had been taken up, leaving a hole in the floor; that when they quit work that day they left the floor of the closet in the condition in which they found it--that is, with an opening or hole in the floor large enough for a man to go through.

Devenny also introduced as a witness by Mrs. Nall, testified, in substance, the same as Fallon, saying that when they went into the closet they found the planks in the floor up, which left a hole in the floor through which they went, in the course of their employment, into the cellar; that when they left the house on that day ...