Lyons v. Lich

• Decision Date: 23 January 1934
• Citation: 145 Or. 606,28 P.2d 872
• Parties: LYONS v. LICH et al.
• Court: Oregon Supreme Court

28 P.2d 872

145 Or. 606

LYONS v. LICH et al.

Supreme Court of Oregon

January 23, 1934

Department No. 1.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Jean B. Lyons against J. R. Lich and another. From a judgment in favor of the plaintiff, the defendants appeal.

Affirmed.

This is an appeal by the defendants, who are the owners of an apartment house located in Portland, from a judgment of the circuit court in favor of the plaintiff, entered upon findings of fact and conclusions of law in her favor in an action instituted to recover damages as redress for a personal injury sustained by her February 16, 1931, when she slipped in the entryway of the apartment house and fell upon the outside staircase, due to the alleged negligent failure of the defendants to maintain those parts of their building in a reasonably safe condition.

RAND C.J., dissenting.

Francis E. Marsh, of Portland (Wilbur, Beckett, Howell & Oppenheimer of Portland, on the brief), for appellants.

Wendell Phillips, of Portland (J. B. Pfouts and Sheppard & Phillips all of Portland, on the brief), for respondent.

ROSSMAN, Justice.

The defendants' brief, with commendable frankness, states "The only question involved in this appeal is whether or not there was any evidence introduced by the plaintiff showing that the defendants herein were guilty of any of the allegations of negligence as set forth in Paragraph IV of the plaintiff's complaint which was the proximate cause of this accident."

Plaintiff while an invitee in the defendants' apartment house, was injured when her feet slipped upon a wet marble slab at the head of a flight of uninclosed concrete steps which led from the main entrance to a court leading to the street. Paragraph IV of the complaint, succinctly stated, charges the defendants with negligence in the following particulars: (1) Failing to light the staircase; (2) failing to light the course over which the plaintiff was proceeding; (3) failing to maintain a railing along the staircase; (4) permitting the marble slab to become wet and slick; and (5) failing to roughen the slab or cover it with a mat. Substantial evidence, in our opinion, reveals the following situation: February 16, 1931, at 10:30 p.m., the plaintiff, accompanied by a Mrs. Harper, who was a tenant in the apartment house, and with whom she had been visiting, was about to leave the building through its aforementioned main entrance. Upon the plaintiff's feet were rubber-soled galoshes. She and Mrs. Harper had passed through the lobby and had gone into the vestibule where the plaintiff opened one of the two swinging doors which gave entrance to the outside preparatory to descending the aforementioned flight of fourteen steps. These steps were about nine feet wide and the risers were seven inches high, making the staircase more than eight feet high. It was not equipped with a hand railing. The staircase, the lobby, and the vestibule were portions of the structure provided for the use of the tenants, their guests, and other invitees of the building. The floor of the vestibule, with the exception of a portion five feet by nine and one-half inches in area directly under the swinging doors, is made of terrazza, a material composed of fragments of marble set in cement. The small area of floor, five feet by nine and one-half inches directly under the swinging doors, consists of a slab of smooth marble somewhat worn after twenty years of use, and is the place where one must step immediately prior to descending the staircase. The outer extremity of this slab projects beyond the doors where it becomes wet during times of rainfall. Rain was falling the evening of February 16, 1931, when the plaintiff's injury befell her, rendering the street, the sidewalk and the marble slab wet. Whenever this sheet of marble becomes wet its surface is slippery. When the plaintiff stepped upon this marble slab, her feet slipped and she fell through the open door down four of the concrete steps in front of her, at the same time reaching vainly for some supporting object. In the fall she sustained the injuries for which she seeks damages. The lobby through which she had passed was amply lighted, but the lights in the vestibule were dim. The staircase was provided with ample lighting equipment but the lights were not burning. Thus, just before she reached the above-mentioned spot she had passed through the well lighted lobby into the dimly lighted vestibule and was looking out upon the dark staircase. Whatever light could have made its way through the glass-paneled door which separated the lobby from the vestibule was obstructed by the plaintiff and her accompanying friend. Their shadows tended to obscure the wet marble slab, and the latter was further hidden from view by the outside doors. The defendants had owned this apartment house for three or four years, and do not avow ignorance of the marble slab nor of the condition which it presented upon rainy days. Since marble floors, when wet, are slippery and endanger the safety of those walking upon them, many owners whose buildings are equipped with such floors place mats made of rubber or grass in the building entrances at times of rainfall.

The findings of fact entered by the trial judge are favorable to the plaintiff upon all of the averments of paragraph IV of the complaint reviewed above. It is apparent from the preceding statement that the findings are supported by substantial evidence. Since the findings have the effect of a jury's verdict (section 2-503, Oregon Code 1930), we are not at liberty to retry the above-mentioned issues of fact. Glickman v. Bowman, 143 Or. 229, 21 P.2d 1082; De Young v. Robertson, 133 Or. 240, 289 P. 1051. This being true, we shall refrain from relating testimony at variance with the above statement.

Having stated the controlling facts, we are now required to determine whether those facts reveal that the defendants were negligent as charged in paragraph IV of the complaint. The defendants agree, as is stated in their brief, that "the owner of an apartment house has the duty towards the occupants of the apartment house and guests of said occupants to exercise ordinary care for their protection and to see that the portion of the premises over which the owner retains control is in a reasonably safe condition of repair, but such apartment house owner is ' not an insurer against all forms of accidents that may happen to any who come on such premises." This concession is well justified by our holding in Massor v. Yates, 137 Or. 569, 3 P.2d 784. See, also, De Mars v. Heathman, 132 Or. 609, 286 P. 144, and the extensive annotations accompanying Gibson v. Hoppman, 75 A. L. R. 148, 108 Conn. 401, 143 A. 635, and Roman v. King, 25 A. L. R. 1263, 289 Mo. 641, 233 S.W. 161. The above rule expressing the landlord's duty can be clarified by adding that the mere use of marble, tile, hardwood, or any other commonly employed floor material in the construction of a floor is not negligence. Wilson v. Werry (Tex. Civ. App.) 137 S.W. 390; Kline v. Abraham, 178 N.Y. 377, 70 N.E. 923; Garland v. Furst Store, 93 N. J. Law, 127, 107 A. 38, 5 A. L. R. 275; Tyron v. Chalmers, 205 A.D. 816, 200 N.Y.S. 362; Abbott v. Richmond County Country Club, 211 A.D. 231, 207 N.Y.S. 183; Chilberg v. Standard Furniture Co., 63 Wash. 414, 115 P. 837, 34 L. R. A. (N. S.) 1079. The landlord is under no duty to furnish artificial light in the common passageways of his building over which he has reserved control if they are so constructed that they are otherwise safe for their intended use. Rhodes v. Fuller Land & Improvement Co., 92 N. J. Law, 569, 106 A. 400; Steele v. Lifland, 265 Mass. 233, 163 N.E. 898; Gallagher v. Murphy, 221 Mass. 363, 108 N.E. 1081, Ann. Cas. 1917E, 594; Hawes v. Chase, 84 N.H. 170, 147 A. 748; Lunde v. Northwestern Mut. Sav. & Loan Ass'n, 59 N.D. 575, 231 N.W. 609; McGinnis v. Keylon, 135 Wash. 588, 238 P. 631; Underhill on Landlord and Tenant, § 492; 36 C.J., landlord and Tenant, p. 214, § 891. However, as is evident, a landlord may expressly contract to furnish artificial light for the common passageways or he may assume such a duty by voluntarily furnishing the light. In the latter instance, his duty will require him to exercise reasonable care to provide the passageways with sufficient light until he relieves himself ot the duty by giving adequate notice. ...