McGinnis v. Keylon

• Decision Date: 21 August 1925
• Docket Number: 19175.
• Citation: 135 Wash. 588,238 P. 631
• Court: Washington Supreme Court
• Parties: McGINNIS v. KEYLON et al.

238 P. 631

135 Wash. 588

McGINNIS v. KEYLON et al.

No. 19175.

Supreme Court of Washington

August 21, 1925

Department 2.

Appeal from Superior Court, Yakima County; Hawkins, Judge.

Action by Hugh McGinnis against L. C. Keylon and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Harcourt M. Taylor, of Yakima, for appellants.

Snively & Bounds, of Yakima, for respondent.

FULLERTON J.

The appellants Keylon and Leckey are the owners of an apartment house located in the city of Yakima. The house has three stores, in each of which are apartments which the appellants let for hire. The lower floor has a basement effect; that is to say, it extends below the natural surface of the ground some four feet. The house fronts upon one of the main streets of the city named. It has two entrances, one at the front of the building, used generally by the tenants of the upper floors, and another on its north side, some 60 feet back from the street, used generally by the tenants of the basement floor. The latter entrance opens onto the basement floor, and to make it accessible from the ground surface an excavation was made around it and a staircase constructed, with a stairway of five treads leading from the surface of the ground down to the bottom of the entrance. From the top of the stairway was a walk leading to the street, the top of which was on a level with the surface of the ground. In the wall of the building, for the purpose of furnishing light to the basement apartments, windows were inserted, two of which faced the walk mentioned. Fronting these windows, extending from the building to the inner side of the walk, light wells were excavated. These were in dimension some 4 feet in length, 1 1/2 feet in width, and 2 feet in depth. No railing or guard of any kind was erected around them. The owners of the building placed an electric light at some point in or near the staircase, which, when burning, lighted the steps therein as well as the walkway leading to the street.

The respondent, McGinnis, was a guest of one of the tenants of a basement apartment of the building. On the evening of September 26, 1923, some two weeks after he had become such guest, between the hours of 8 and 9 o'clock, he left the apartment at which he was a guest, passed out through the side entrance, intending to pass over the walk leading to the street. As he reached the first of the light wells he stepped too near the edge of the walk, when his foot slipped into the well, causing him somewhat severe injuries. This action was brought to recover for the injuries suffered. In his complaint he alleged, as negligence, the failure to maintain a guard around the light well, and a failure to maintain and keep burning the light on the passage way. The answer admitted that no railing or other form of guard was maintained around the light well, but denied the failure to maintain and keep burning the light. There was also a plea of contributory negligence. The cause was tried to a jury, and a verdict was returned in favor of the respondent in the sum of $821.76. The appellants challenged the verdict as excessive, and the court gave the respondent his election to take a judgment for $600 or submit to another trial. The respondent elected to take the reduced sum, and judgment was entered for that amount.

The evidence showed without contradiction that no change had been made either in the walk or light well subsequent to the time that the tenant of the apartment, of whom the respondent was a guest, leased it; in fact, it showed that the walk and the light well were a part of the original construction, and that the fault, if fault there was, was a fault of construction. Concerning the electric light at the staircase, the evidence showed that a light at that place was necessary to safety of those traveling over the walk after dark--indeed, one of the owners of the property so testified--and showed that the owners sought to keep it burning between dusk in the evening and daylight in the morning, and showed further that the light was so installed and burning at the time the tenant with whom the respondent is related leased the apartment.

On the questions whether the light was burning at the time of the accident and whether the respondent was exercising ordinary care for his own safety when passing over the walk, there was a decided conflict in the evidence. But these, we are clear, were questions for the jury, and their verdict, of course, within that view, precludes further inquiry concerning them in this court.

At appropriate times during the progress of the proceedings, the appellants challenged the sufficiency of the evidence, moved for a directed verdict, and moved for judgment in their favor notwithstanding the verdict. The trial court overruled the challenge and the motions, and the appellants' first assignment is that it erred in so doing.

The appellants first contend that there is no actionable negligence because of their failure to construct railings around or otherwise guard the light wells, and that, since it was shown that there was...