Markussen v. Mengedoht

• Decision Date: 26 March 1937
• Docket Number: 29826.
• Citation: 272 N.W. 241,132 Neb. 472
• Parties: MARKUSSEN v. MENGEDOHT.
• Court: Nebraska Supreme Court

272 N.W. 241

132 Neb. 472

MARKUSSEN v. MENGEDOHT.

No. 29826.

Supreme Court of Nebraska.

March 26, 1937

Syllabus by the Court.

1. How an injury was sustained is a question of fact that may be established by circumstantial evidence.

2. Where facts and circumstances are established from which the manner of sustaining injuries can be logically inferred, an issue is presented for the jury.

3. Where premises are leased with portions thereof reserved by the lessor for use in common of all the tenants, the lessor is liable only for personal injuries to a tenant due to his negligent failure to keep such portion of the premises in a reasonably safe condition for the use intended.

4. An instruction which assumes as proved a material, controverted fact is erroneous.

Appeal from District Court, Douglas County; Lightner, Judge.

Suit by Ronald Markussen, an infant, by Otis Markussen, his next friend, against Bertha H. Mengedoht, trustee. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Where facts and circumstances are established from which manner of sustaining injury can be logically inferred, jury issue is presented.

Dressler & Neely and H. J. Lutz, all of Omaha, for appellant.

Frost Hammes & Nimtz, of Omaha, for appellee.

Heard before ROSE, GOOD, EBERLY, and CARTER, JJ., and RYAN and KROGER, District Judges.

KROGER, District Judge.

Ronald Markussen, an infant, brought this suit by his father as his next friend, to recover damages for personal injuries sustained in a fall on premises belonging to the defendant. There was a trial to a jury which resulted in a verdict in favor of plaintiff and from the order overruling defendant's motion for new trial, this appeal is prosecuted.

The evidence discloses that the defendant is the owner of a four-story apartment building in the city of Omaha, and some nine months prior to the time of the accident in controversy plaintiff's parents leased a suite on the first floor of said apartment house. The building fronts towards the east and there is a hallway extending across the same from the front entrance to the rear, running east and west, and an intersecting hallway, in approximately the center of the building, running north and south. To the rear is another building and between the two buildings is a space equipped and used for a children's playground. There is a window to the right of the rear door of the east and west hallway, the opening of which is approximately thirty-two inches wide and six feet four inches high and the window sill is approximately twenty inches above the floor and is twelve inches in width. On the outside of the building, immediately beneath the window in question, there is an area-way, or pit, approximately ten feet in depth, which serves as an outside entrance to the basement and contains a stairway leading to the basement. Along the north wall of said hallway and commencing at a point within a few inches of the window frame and extending towards the east are a number of mail boxes placed there for the reception of mail addressed to the various tenants in the building. During the summer months the lower half of the window, above mentioned, was usually kept open and from May until September or October, a screen was maintained on said window by the owner, which screen was attached to the window by two hooks, one on either side attached at approximately the center of the frame, and eyelets were fastened to the window frame into which the hooks on the screen were inserted.

On the 23d day of July, 1934, during the noon hour, the plaintiff, then two and one-half years of age, was found lying unconscious and severely injured in the pit im mediately beneath the hall window. There were no eye-witnesses as to how the accident occurred, but after the accident an examination was made of the window screen, and the north hook of the screen was found to be unlatched and that portion of the screen pushed outward and the point of the hook bent to such an angle that, when replaced in the eyelet, a slight pressure was sufficient to cause it to release and the screen to push out. On the floor beneath the window were bits of torn paper, which appeared to have been name cards attached to some of the mail boxes. There was evidence that there were a number of children living in the apartment building, and that at various times they had been in the habit of playing in the halls and had been seen playing around the window in question, and one of the witnesses testified that she had seen children sitting in the window.

At the close of plaintiff's evidence, and again at the close of all of the evidence, defendant moved for a directed verdict, on the ground that the evidence was insufficient to sustain a judgment in favor of the plaintiff.

Plaintiff's action is based on the theory that plaintiff had climbed into the window in order to reach the name cards on the mail boxes along the wall and, while so engaged, leaned or fell against the screen, and that, due to the carelessness and negligence of the defendant in maintaining said screen in an unsafe and insecure condition, plaintiff fell from the window into the pit and suffered the injuries complained of.

Defendant assigns as error the overruling of her motion for directed verdict, the giving of certain instructions, refusal to give instructions requested by defendant, and misconduct of plaintiff's counsel in his argument to the jury.

In support of her contention that the court should have directed a verdict, the defendant argues, first, that there was no evidence from which the jury could find that plaintiff had fallen from the window, as alleged in his petition; that all of the proof produced by plaintiff con sisted of the presumption or inference that might be drawn from the condition of the premises and the further presumption that the fall was due to the negligence of the defendant in not having the screen securely fastened to the window frame; and argues that you cannot rest one presumption upon another, and that all plaintiff has proved is that he was injured in an accident, and nothing more.

This point does not seem to be well taken. All that plaintiff was required to do was to establish, to a reasonable probability that the accident happened in the manner alleged in his petition, and where facts and circumstances are established from which the way the accident...