Lunde v. Northwestern Mutual Savings & Loan Association, a Corp.

• Decision Date: 28 June 1930
• Citation: 231 N.W. 609,59 N.D. 575
• Court: North Dakota Supreme Court

231 N.W. 609

59 N.D. 575

NORRIS LUNDE, Respondent, v. NORTHWESTERN MUTUAL SAVINGS & LOAN ASSOCIATION, a Corporation, Appellant

Supreme Court of North Dakota

June 28, 1930

Appeal from the District Court of Ward County, Lowe, J.

Reversed.

Conmy Young & Conmy, for appellant.

Landlord is under no duty, unless assumed by contract, to furnish light at night for the common halls and stairways, although such lights may be necessary for safe use. 16 R.C.L. 1041.

"Where plaintiff was injured while in unlighted passageway, while visiting, by invitation, tenant of defendant in defendant's building, in absence of evidence that passageway was lighted when tenancy began, failure of defendant thereafter to light it, or reconstruct stairs furnished no proof of negligence." Blaufarb v Drooker (Mass.) 146 N.E. 242.

There is no common-law duty to furnish light in hallways of rented buildings. Lindsley v. Stern, 203 A.D. 615, 197 N.Y.S. 106.

There is no common-law obligation on the landlord to provide artificial light for any portion of the premises. Burgher v. Buchtenkirch, 167 N.Y. 153; Hilsenbeck v. Guhring, 131 N.Y. 674; Kunder v. Purchase Holding Co. 188 A.D. 94.

"In order that it may be the duty of the landlord to investigate, there must be something to suggest an investigation." 16 R.C.L. 1042.

When the plaintiff alleges negligence he is required to prove it. His proofs must establish the charge. Mere speculation or possibility will not do. Sheldon v. R. Co. 29 Barb. 228; Longabaugh v. R. Co. 9 Nev. 296; Smith v. Ry. Co. 37 Mo. 295; Omaha R. Co. v. Clark (Neb.) 53 N.W. 471; White v. R. Co. 1 S.D. 330, 47 N.W. 146, 9 L.R.A. 824; Blading v. Andrews & Gage, 12 N.D. 267, 96 N.W. 305.

"When the nature of the evidence, in an action for damages, is such that no verdict for the plaintiff can be returned except based upon mere conjecture, surmise, or speculation, it is proper for the trial court to direct a verdict for the defendant." Scherer v. Schlaberg & Griffin, 18 N.D. 421, 122 N.W. 1000.

"A landlord is not liable for injuries to his tenant arising from a patent defect in the premises, existing at the time of the lease, and of which the tenant knew, or had means of knowing, equal to those of the landlord, unless the rent contract stipulates to the contrary." Henley v. Brockman, 124 Ga. 1059, 53 S.E. 672; Aikin v. Perry, 119 Ga. 263, 46 S.E. 93; Driver v. Maxwell, 56 Ga. 12; Williams v. Jones, 106 S.E. 616; McGee v. Hardacre (Ga.) 107 S.E. 564.

"The rule of caveat emptor applies to leases of real estate, and, in the absence of warranty, deceit, or fraud on the part of the lessor, the lessee cannot recover for personal injuries received through latent defects therein, of which the lessor had no knowledge at the time of making the lease, and which were as patent to the lessee as to the lessor." Rankin v. Elizabeth Kountze Real Estate Co. (Neb.) 162 N.W. 532; McGinn v. French (Wis.) 82 N.W. 724.

Sinkler & Brekke, for respondent.

"If the landlord does not exercise common care and prudence in the management and oversight of that portion of the building which belongs to his special supervision and care, and damages are sustained by a tenant on that account, he becomes liable for them. Priest v. Nichols, 116 Mass. 401; Kirby v. Association, 14 Gray, 249, 74 Am. Dec. 682; Gray v. Gaslight Co. 114 Mass. 149, 19 Am. Rep. 324; Norcross v. Thoms, 51 Me. 503, 81 Am. Dec. 588. . . . See Glickauf v. Maurer, 75 Ill. 289, 20 Am. Rep. 238; Milford v. Holbrook, 9 Allen, 17, 85 Am. Dec. 735; Shipley v. Fifty Associates, 106 Mass. 194, 8 Am. Rep. 318. As to portions of the building of which the landlord has control, he retains all of the responsibilities of a general owner to all persons, including the tenants of the building. Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295. See also Freidenburg v. Jones, 63 Ga. 612; Hibes v. Freidenburg, 66 Ga. 505, 42 Am. Rep. 76; 2 Wood, Land. & T. 843; 2 McAdam, Land. & T. 1234; 2 Shearm. & Redf. Neg. 710." Kneeland v. Beare, 11 N.D. 233, 91 N.W. 56.

"A landlord is liable for injuries to the guest of a subtenant of an apartment in an apartment house, for injuries received by falling down a stairway due to the landlord's negligence in failing properly to light it." O'Sullivan v. Norwood, 14 Daly 286, 8 N.Y.S. 388.

Whether the landlord is liable or not for injuries sustained to tenant is a question for the jury. Gallagher v. Murphy, 221 Mass. 363, 108 N.E. 1081, Ann. Cas. 1917E, 594.

Owner of building which he rents to different tenants and reserves the hallways for their common use, must keep hallways and stairways in a reasonably safe condition and is liable for injuries to tenants and their guests due to his failure to perform that duty. Habner v. Bender, 127 A. 202; Smith v. Morrow, 230 Ill.App. 382.

"Where there is evidence that the injured person, a tenant of an apartment, was proceeding carefully through a poorly lighted hallway of the apartment when the accident occurred, the question of her contributory negligence is for the jury." Mustavi v. St. John Foundation, 158 N.Y.S. 717. See also Hicks v. Smith, 158 A.D. 299, 143 N.Y.S. 136.

"A tenant is not necessarily guilty of contributory negligence in using an unlighted stairway, known to her to be out of repair." Brenna v. Lachat, 5 N.Y. 882.

Burke, Ch. J. Christianson, Birdzell, Nuessle, and Burr, JJ., concur.

OPINION

BURKE

The plaintiff brings this action for a personal injury received in a fall on the steps, as he was entering an apartment house belonging to the defendant in the city of Minot.

At the close of plaintiff's case, the defendant moved to dismiss the action upon the ground, that there was no evidence of any negligence on the part of the defendant, and that it affirmatively appeared from the evidence, that the plaintiff's injury was caused by his own negligence. The motion was overruled, and at the close of all the testimony the defendant renewed his motion, and moved for a directed verdict which was overruled, and from a judgment entered upon the verdict of the jury the defendant appeals, alleging as error the overruling of his motion for a directed verdict.

The plaintiff at the time of the accident was, and for eighteen months prior thereto, had been living with his mother who occupied, and had occupied for six years, an apartment in the defendant's building. There were five other tenants in the apartment house who used the steps to enter the building. About four years before the accident the wooden steps which had been there were removed and cement steps were built. There are six steps in all, which according to the testimony of plaintiff's mother, were about 12 inches wide near the wall and tapered out to about an inch on the other end. There was no light over the steps, and while there was a place for a light, there had never been a light there. To the west of the steps there is an area-way for a basement window which is surrounded by a railing of two pipes which follows the steps up and are fastened to the building. The witness had seen the janitor making repairs in the building. This testimony is corroborated by the plaintiff, who further said, "It is a circular stairway and that between 12:15 and 12:30 of October 21st I came home from a dance with my sister and a Miss Shaber. My sister and Miss Shaber went up the stairs ahead of me. My sister was at the top, and Miss Shaber was about half way up when I fell. I followed the other two and slipped on the second step. I was going carefully and thought my foot was secure. I fell backward and tried to grab for something, but couldn't catch anything. There was no light, it was dark and I couldn't see at all. I lived at this place about a year and eight months prior to the accident, and used this entrance every day about six times a day. I used them after dark about once a day. I go up and down these steps now with my crutches."

Plaintiff's sister, Alice Lunde, testified, "I was with the plaintiff on the night of the injury. There was no light, and no light in the hall. The light in the hall is used by various occupants to light up the hall. They have to turn it on themselves, and lots of times it isn't on. I walked up the stairs ahead of Miss Shaber and my brother. I reached the top and turned around just in time to see Norris slip on the step and grab for the stone wall. There is a railing that you can hold on to for about three steps on the right hand side. A light was put in above the door in December, sometime after the accident. I was up the steps and had hold of the screen door when my brother fell. The switch for the hall light is right by this door as you go up, but I did not turn it on."

It is undisputed, that the total width of the steps is 52 inches and that the width of the steps at the center is nine inches.

It is the contention of the plaintiff, that the defendant was negligent in the construction of the steps, and in the failure to keep the same lighted and cites and relies on the case of Gallagher v. Murphy, 221 Mass. 363, 108 N.E 1081, Ann. Cas. 1917E, 594. This case states the law clearly and holds, that, "It is familiar law that a tenant commonly takes premises as he finds them, with no duty on the part of the landlord to look after their safety. But where the landlord retains in his possession and control the common halls and passageways, the law...