Lowe v. Cmty. Inv. Co., (No. 8679)

• Decision Date: 08 March 1938
• Docket Number: (No. 8679)
• Citation: 119 W.Va. 663
• Court: West Virginia Supreme Court
• Parties: Ellen Lowe v. Community Investment Company

119 W.Va. 663

Ellen Lowe

v.Community Investment Company

(No. 8679)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1938.

Decided March 8, 1938.

1. Landlord and Tenant

"In the absence of a special contract, the law imposes on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him and used in common by different tenants. * * *a family-apartment tenancy requires of the landlord the care due the ordinary family of normal habit." Marsh v. Riley, 118 W. Va. 52, 188 S. E. 748.

2. Landlord and Tenant

A member of a family occupying under lease an apartment in a tenement house is not guilty of contributory negligence, as a matter of law, in continuing to use in a careful manner a common passageway or stairs which he knows to be defective.

3. Instructions

An instruction is not prejudicially erroneous because in one of its elements it is not technically phrased, if the language employed in that particular essentially conveys the same thought which the conventional phraseology would have conveyed.

Kenna, Judge, absent.

Error to Circuit Court, Raleigh County.

Action by Ellen Lowe against the Community Investment Company for injuries received by plaintiff when she fell on broken step leading from second story apartment of which plaintiff was tenant. To review a judgment setting aside a verdict for $5,000 in favor of plaintiff, and awarding a new trial, plaintiff brings error.

Reversed and rendered.

George W. Williams and W. H. McGinnis, Jr., for plaintiff in error.

Charles T. Ross and O. L. Hedrick, for defendant in error.

Maxwell, President:

This writ of error brings for review the judgment of the circuit court of Raleigh County setting aside a verdict for $5,000.00 in favor of Ellen Lowe against Community Investment Company, a corporation, and awarding a new trial.

Plaintiff, a woman of 69 years, was a member of the family of her nephew, Charles Luther, and lived with the family in a second-story apartment which Luther had leased of the defendant in the town of Lester, Raleigh County. She sues for damages for personal injury sustained by her in a fall on the rear steps of the apartment building January 4, 1937. At the time of the accident, she was en route to an outdoor closet in rear of the building, there being no inside toilet. The stairway was maintained by the defendant for the use of the tenants. The ground of the action is the alleged negligence of de- fendant in not maintaining the stairway in a reasonably safe condition that a hole in the tread of one of the steps caused her to fall, and that the defendant had knowledge of that defect for considerable time before the accident occurred.

The existence of the defect and knowledge thereof by a responsible representative of the defendant are not denied. Neither is it questioned that the plaintiff was injured in the manner she alleges. The defense is that the plaintiff should have used the front stairway of the building, and, having elected to employ the rear stairway, knowing of the broken step therein, she contributed to her own injury by assuming the risk of using the obviously dangerous stairway.

The evidence shows that the front stairway was not as convenient for the second-story tenants in reaching the toilet as was the rear stairway. And then, too, it is in accord with common decency and the proper sensitiveness of normal people that they do not desire to travel a conspicuous, front-door route leading to a street and thence around a building in order to reach a toilet. So, we consider that the front stairway did not afford a reasonably suitable route to the back yard and is therefore not an element in the legal equation at hand.

"In the absence of a special contract, the law imposes on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him and used in common by different tenants. * * * A family-apartment tenancy requires of the landlord the care due the ordinary family of normal habit." Marsh V. Riley, 118 W. Va. 52, 188 S. E. 748. Many cases declare this rule. Illustrative: Roman v. King, 289 Mo. 641, 233 S. W. 161, 25 A. L. R. 1263 and annotation, pp. 1273 et seq.; Siggins v. McGill, 72 N. J. L. 263, 62 Atl. 411, 3 L. R. A. (N. S.) 316, 111 Am. St. Rep. 666.

There is an equally well settled rule that in such circumstances, a tenant or a member of his family is not guilty of contributory negligence, as a matter of law, in continuing to use in a careful manner a common passageway or stairs which he knows to be defective.

Looney V. McLean, 129 Mass. 33, 37 Am. Rep. 295; Bollard v. Roberts, 130 N. Y. 269, ...