McCullagh v. Fortune

• Decision Date: 21 March 1949
• Docket Number: 7104.
• Citation: McCullagh v. Fortune, 76 N.D. 669, 38 N.W.2d 771 (N.D. 1949)
• Parties: McCULLAGH v. FORTUNE et al.
• Court: North Dakota Supreme Court

38 N.W.2d 771

76 N.D. 669

McCULLAGH v. FORTUNE et al.

No. 7104.

Supreme Court of North Dakota

March 21, 1949

Rehearing Denied Aug. 15, 1949.

Syllabus by the Court.

1. Where the owner of premises leases parts thereof to different tenants and either expressly or impliedly reserves certain parts thereof, such as halls or stairways for the common use of different tenants, it is his duty to exercise reasonable care to keep safe the parts of which he so reserves control and if he is negligent in this regard, and a personal injury results to a tenant by reason thereof, he is liable, provided the injury occurs while such part of the premises is being used by the tenant in the manner intended.

2. Ordinarily negligence, proximate cause, and contributory negligence are questions of fact for the jury. They become questions of law only when the evidence is such that ordinarily intelligent, reasonable and fair-minded men in the exercise of reason and judgment can draw only one conclusion but if the evidence is such that ordinarily intelligent reasonable and fair-minded men in the exercise of reason and judgment may draw different conclusions from the evidence and circumstances as to the facts or deductions to be drawn from the facts then they are questions of fact for the jury.

3. In the instant case it is held, for reasons stated in the opinion, that the questions of negligence, contributory negligence and assumption of risk were questions of fact for the jury.

4. Certain assignments of error predicated upon the refusal of the trial court to give to the jury certain instructions requested by the defendants are considered and for reasons stated in the opinion it is held that the trial court did not err in refusing to instruct the jury as so requested.

Wattam, Vogel & Vogel, of Fargo, for defendants and appellants.

Nilles, Oehlert & Nilles, of Fargo, for plaintiff and respondent.

CHRISTIANSON Judge.

Plaintiff brought this action to recover damages for personal injuries which it is alleged she sustained on March 11, 1947, by reason of the negligence of the defendants. In their answer the defendants admit that plaintiff has been injured but deny that such injuries were caused by the negligence of the defendants and allege that the plaintiff was guilty of contributory negligence and that such negligence was the proximate cause of her injuries.

The case was tried to a jury. At the close of plaintiff's case and again at the close of the entire case defendants moved for a directed verdict on the grounds that the evidence failed to establish negligence on the part of the defendants and that the evidence established that plaintiff's injuries were caused by her own negligence. Both motions were denied and the case submitted to the jury. The jury returned a verdict in favor of the plaintiff for $8,500. Judgment was entered pursuant to the verdict and the defendants have appealed. They assign error upon the denial of the motions for a directed verdict, and upon the action of the court in refusing to give certain instructions. They contend that the evidence is insufficent to sustain the verdict, that the verdict is against the law; that the evidence does not establish that the defendants were guilty of any negligence proximately causing the accident; that the evidence conclusively shows that plaintiff was guilty of negligence which proximately caused the accident, and that the plaintiff as a matter of law assumed the risk of the accident and is barred from any recovery.

The material facts as shown by the evidence are substantially as follows:

The defendants are the owners of an apartment building in the City of Fargo known as the Ansonia Building. The defendants purchased this building and entered into possession thereof about November 1, 1946. The plaintiff was then a tenant of the former owners and occupied an apartment in the building and had been occupying the same for some two years. She continued to occupy such apartment as a tenant of the defendants after their purchase of the building. The apartment occupied by the plaintiff was the only apartment in the basement although another basement apartment was under construction at the time the accident occurred.

There was a passage-way or corridor running east and west the entire length of the basement,--a distance of some 75 feet. This passage-way was some five or six feet in width. The apartment occupied by the plaintiff was on the south side of the passage-way and toward the west end of the building. A lavatory assigned for the use of the plaintiff was entered from such passage-way and there had been constructed a number of cupboards or lockers that also opened on the passage-way. The passage-way was for the common use of all tenants and occupants of the building. The plaintiff and the other tenants had no duty with respect to the maintenance, care, and lighting thereof. It was the duty of the defendants to maintain and to light it. The entrance to the apartment occupied by the plaintiff was upon such passage-way. Under the rental agreement between the plaintiff and the defendants, plaintiff was given the exclusive use of a locker or cupboard in the passage-way. The locker or cupboard opened on the passage-way and was located about 20 feet east of the entrance to the apartment occupied by the plaintiff. Immediately west of plaintiff's apartment was a 'wash room',--a room available to the tenants for laundry purposes. Some distance east of plaintiff's apartment was a 'large drying room',--a room utilized by the tenants in which to dry clothes that had been laundered. 'To get to the drying room from the wash room you went down the passage-way east from the wash room.' The locker or cupboard used by the plaintiff was divided into two parts or compartments. There were two separate doors, attached by hinges at each side, which met and fastened in the center. The plaintiff used one of these compartments for storing various articles and she utilized the other compartment in which to store food, especially canned fruits.

The floor in the passage-way was of concrete, in its natural color. There was no covering of any sort on the floor. Two of the defendants and their families occupied apartments in the building. Shortly before the plaintiff was injured the defendants had begun to construct an additional apartment in the basement,--utilizing a part of the drying room for that purpose. They were doing much of the construction work themselves. They had on hand and had stored in the drying room a considerable quantity of material to be used for the construction. They had ordered a number of sheets of sheet rock or plaster board which were delivered some days before the accident occurred. These boards are constructed with a plaster composition in the center coated on each side with layers of heavy paper. The boards were 4 feet by 8 feet and were packed two boards to a package. The ends of the packages were wrapped in brown colored paper. Each board weighed a little over 50 lbs. so each of the packages weighed a little over 100 lbs. There were in all some five or six packages of these boards. When these boards were delivered the men who delivered them placed them in the passage-way on the opposite side from the apartment occupied by the plaintiff and some distance from the entrance to the apartment. In order to uncover the sewer pipe under the floor of the basement to make sewer connections for the new apartment the defendants found it necessary to move the boards from where they had been placed. One of the defendants testified that the boards were moved on the day the accident occurred. The boards were moved by two of the defendants personally and placed directly in front of and leaning against the cupboard in which the plaintiff kept the canned fruit. In moving them each of the two defendants took ahold of one end of the package containing two boards and carried it across to the opposite side of the passage-way, and there they placed the boards leaning against the cupboard in which plaintiff kept her canned fruit. The defendants admitted that the boards could have been placed elsewhere in the basement. One of the defendants stated as a reason for not placing them in the drying room that the defendants had a lot of lumber in there and the boards were not placed there so that if people came down to wash 'they wouldn't hurt the boards.' The boards were placed so that the edge that was 8 feet long rested on the floor. The evidence is not definite or clear as to the particular angle at which they were placed. Plaintiff testified that they stood almost perpendicular. Two of the defendants had little or no idea as to the angle at which they were placed and the third defendant testified that they were placed so that at the bottom the boards were a distance of about 5 inches from the wall.

The passage-way was ordinarily lighted with an electric light equipped with a 40-watt bulb suspended from the ceiling by a drop cord. There were three other electric lights farther down the passage-way which were operated by a switch. The lights nearest the cupboard were used in connection with the drying room. The cupboard was locked with a padlock. Plaintiff testified that between 5:30 and 6 o'clock in the evening of March 11, 1947, she decided to go to the cupboard and get a jar of canned fruit for dessert. She carried the key for the padlock on the cupboard in her hand. She stated that the hall was dimly lit and that she 'hardly believed' that any of the lights in the hall were on. She testified that when she came to the cupboard and saw the boards leaning against it, judging from their appearance she thought they were light fiber boards or plywood and that she could move them away from the cupboard...