Majerus v. Guelsow

• Decision Date: 02 February 1962
• Docket Number: No. 38196,38196
• Citation: 113 N.W.2d 450,262 Minn. 1
• Parties: Claudia K. MAJERUS, as trustee for the next of kin of Emil William Majerus, deceased, Respondent, v. Tillie M. GUELSOW and/or Standard Accident Insurance Company, Appellants.
• Court: Minnesota Supreme Court

Page 450

113 N.W.2d 450

262 Minn. 1

Claudia K. MAJERUS, as trustee for the next of kin of Emil William Majerus, deceased, Respondent, v. Tillie M. GUELSOW and/or Standard Accident Insurance Company, Appellants.

No. 38196.

Supreme Court of Minnesota.

Feb. 2, 1962.

Syllabus by the Court

1. It is not necessary to prove proximate cause by the testimony of an eyewitness. When there is direct evidence that defendant was negligent in maintaining a stairway, and that the decedent fell down the stairs, the causal link between these two may be inferred by the jury without direct evidence on the point. Plaintiff was not bound to negative all possible circumstances which would excuse the defendant. Unless the verdict of the jury is manifestly and palpably contrary to the evidence, it should not be set aside.

2. The trial court has the same powers with regard to special verdicts or special interrogatories as it has with regard to general verdicts. Therefore when the evidence is conclusive against the jury's answers, they may be set aside.

3. When the trial court grants a motion made by one of defendant's counsel, that ruling cannot be questioned in defendant's name by another of her counsel.

Carroll, Thorson, Anderson & Cronan, Minneapolis, for appellants.

Howard I. Donohue, St. Cloud, for respondent.

FRANK T. GALLAGHER, Justice.

Appeal from a judgment and from an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial.

This is an action for death by wrongful act brought by Claudia K. Majerus, as trustee for the next of kin of her deceased husband, Emil Majerus. Plaintiff claims that the decedent received fatal injuries while descending a basement stairway which she alleges was negligently maintained by the landlord, defendant, Tillie M. Guelsow. As a second count of the complaint, plaintiff also alleges that her deceased husband was an employee of defendant and that at the time of his injuries and death he was in the performance of his duties as such employee of defendant, who failed to provide a safe place for him to work.

The defendant denied any negligence in the maintenance of the stairway, alleged contributory negligence and assumption of risk, and denied the master-and-servant relationship.

The issues were submitted to the jury through a special verdict containing 14 interrogatories. In substance the jury found for plaintiff and awarded $7500 in damages. Specifically it found that defendant was negligent, that such negligence was the proximate cause of the decedent's death, and that the latter was not contributorily negligent.

On Sunday, January 25, 1959, about 8 a.m., Emil Majerus was found dead in the basement of an apartment house in Sauk Centre, owned by defendant Tillie M. Guelsow. He and his wife were tenants of Mrs. Guelsow, and in addition he performed certain duties for Mrs. Guelsow in return for a five-dollar-a-month reduction in rent. These duties consisted of looking after the furnace, sump, pump, and water softener--all located in the basement--and shoveling snow from the sidewalks. Decedent was 66 years old, weighed about 220 pounds, was receiving social security, and worked at a local garage as a mechanic. He returned to his apartment for lunch about noon on Saturday, January 24, 1959. He was dressed in overalls, jacket, work shirt, and cap. There is testimony that during the noon meal decedent stated that he had a job to do that afternoon and when it was finished he would return and fix the sump pump in the basement and take his wife to church that evening. He was dressed in his work clothes when he left his apartment about 1 p.m.

Plaintiff testified that when her husband did not return for supper Saturday evening she 'took it for granted that he was called out somewhere.' She was not sure about whether she had supper herself, but said she looked at the television and after the 10 o'clock news program she went to bed. She said that she and her husband occupied the same bedroom, with twin beds, and when she awakened about 7:30 the next morning, she observed that her husband was not in his bed. After dressing she went downstairs and outside, where she saw her husband's car. She next opened the basement door, saw the basement lights on, called, and upon receiving no answer, walked down the steps and observed the body of her husband in the basement. She then came upstairs to get help and met Dr. and Mrs. Henry Banal, also tenants in the building.

Dr. Banal, a veterinarian, testified that plaintiff was quite upset and told him that her husband was downstairs. The doctor then went to the basement and found Mr. Majerus near the stationary tubs, some 30 feet from the bottom of the stairs. He examined the body and determined that Majerus was not alive at that time.

Dr. A. B. Nietfeld, the deputy coroner, testified he was called about 8:30 o'clock Sunday morning, January 25. Upon arriving at the building he went to the basement where he found decedent's body lying face down at the east end of the basement. His examination of the body disclosed that decedent had bruises over one eye and over the back of his head and other bruises, and had been dead for some time--'(o)ver a couple of hours as least'--as rigor mortis was complete.

Plaintiff testified that when she found her husband lying in the basement he was wearing different clothes from those he had on at lunch.

John Hardigan, chief of police, who went to the building with Dr. Nietfeld about 11 o'clock on Monday morning, January 26, testified that they found two flashlights, a file, and a pencil under the stairway. He said there was one spot of blood 10 feet from the steps leading to the east, one in front of the drier, and one in front of the tubs where decedent was found; also one under the second step of the stairway, where he found the flashlights and pencil. The witness observed that the dust was disturbed under the stairway from the platform to the basement floor, that there were no cobwebs, but that there were cobwebs under the open structure which held up the platform.

He said that he examined the flight of 13 steps, using a flashlight; that the third step from the bottom 'had a little splinter on it at that time' which was a fresh break chipped off from a piece of wood. When questioned as to his observations of that step, the witness replied that it was much shorter than the rest of the steps; that the 'overhang' was broken off and that it appeared to be an older break. He explained that the second step from the bottom had a gouge in it on the north side, as if something hard had hit it, but he could not say how it was made.

Gene Kropp, a general contractor, testified in behalf of plaintiff that he made measurements of the stairway in the presence of defendant's counsel; later he prepared a sketch which was introduced into evidence. The sketch indicated that the stairway had 13 steps, a landing, and then a 'ladder' of five more steps; that the risers of the 13 steps varied in height, the top one being 5 3/8 inches, the one below 7 5/8 inches, and the others varying from 8 to 8 3/8 inches; that the treads varied in width from 7 3/4 inches to 11 5/8 inches; and that most of the steps were not quite level. He said that the third step from the bottom had 1 1/4 inches of the edge broken off; that the overhang from the fourth step left but 6 3/4 inches of the third step upon which to place one's foot; and in addition that the third step was loose and had a 'rubbery' effect when stepped on. There was no rail on either side of the 5 steps between the landing and the basement.

One tenant, Mrs. Banal, testified that, although the basement was used by tenants for their laundry, there had not been any previous accidents on these steps; however, she was allowed to state without objection that she 'was really afraid of the stairway.'

The manager of the American Legion Club, which was located on the first floor of defendant's building, testified that he observed decedent in the club rooms of the Legion Club between 4 and 5 o'clock on the afternoon of January 24. The witness, who was tending bar in the club at the time, said that he thought that decedent had two drinks of whiskey. He claimed that decedent remained at the club for about 45 minutes and that when he last saw him his talk was normal and there was nothing out of the ordinary in his appearance. There was also testimony that decedent was observed drinking some four glasses of beer at the Corner Bar about 3 o'clock that afternoon.

About 2 months after the death, Dr. A. E. Davis, Jr., a pathologist, performed an autopsy. He testified that there were bruises on both knees, on the back of both arms, and on the back and top part of decedent's head, and that there were abrasions over the elbows and areas of hemorrhage over the left eyelid and at the neck area. He also found a skull fracture at the base of the skull and was of the opinion that 'Mr. Majerus fell downstairs.' In describing the skull fracture, the pathologist testified that decedent was hit on the top of the head. It was his opinion that the death of the decedent was not instantaneous and that it was possible that he was up and able to walk after the accident. This may account for the change of clothes, if that occurred after the accident, and for the distance the body was found from the stairway after the accident.

The defendant assigns as error: (a) That the trial court erred in denying her motion for a directed verdict; (b) that the trial court erred in denying her motion for judgment notwithstanding the verdict; and (c) that the trial court was bound by the answers of the jury to interrogatories 3, 6, and 7 of the special verdict.

1. Defendant argues that plaintiff wholly failed to prove any actionable negligence on her part which was the proximate cause of the death and that the trial court should have directed a verdict for her or granted her motion for judgment...