Mitchell v. Foran

• Decision Date: 25 January 1936
• Docket Number: 32584.
• Citation: 53 P.2d 490,143 Kan. 191
• Parties: MITCHELL v. FORAN et al.
• Court: Kansas Supreme Court

53 P.2d 490

143 Kan. 191

MITCHELL v. FORAN et al.

No. 32584.

Supreme Court of Kansas

January 25, 1936

Syllabus by the Court.

In action against building owner and tenant for injuries to child who caught her leg on awning hook on one of front windowsills close to sidewalk, evidence held to establish actionable negligence.

In action against building owner and tenant for injuries to child who caught her leg on awning hook on one of front windowsills close to sidewalk, evidence supported finding that awning hooks were not commonly and generally used in position used in case, where jury were given ocular inspection (Rev.St.1923, 60--2910).

In action against building owner and tenant for injuries to child who caught her leg on awning hook on one of front windowsills close to sidewalk, evidence supported qualification to special answer that child using ordinary care would have safely passed, referring to child being crowded to edge of walk.

Evidence whether child injuring her leg on awning hook on one of front windowsills of building close to sidewalk was contributorily negligent held for jury.

In action for injuries to 9 year old girl, instruction authorizing substantial recovery for injuries, for pain and suffering, and for inconvenience and lessening of earning capacity held not erroneous on ground of lack of evidence justifying inclusion of damages for lessened earning capacity, where jury allowed only $740.15 plus medical expenses.

Tenant renting building from month to month as warehouse, with commonly used way of ingress and egress at rear, held not liable for injuries to child who caught her leg on awning hook on one of front windowsills close to sidewalk.

In an action against the owner of a building situated on a city street, and against his tenant of a part of the building, for damages for injuries sustained by a 9 year old pedestrian when she caught and injured her leg on an awning hook on one of the front windowsills, the record examined and held:

1. Actionable negligence was established by the undisputed facts and the legitimate inferences deducible therefrom.

2. The jury's special findings of which defendants complain were supported by the evidence inherent in the circumstances about which there was no material dispute.

3. Other objections to certain special findings considered and not sustained.

4. The question of plaintiff's contributory negligence was properly left to the jury and not subject to disposition as a matter of law.

5. Error based on the instructions to the jury considered and not sustained.

6. Under the facts of this case, the liability of the owner who caused the awning hook to be affixed on the windowsill and maintained thereat for seventeen years did not also attach to the tenant who merely rented part of the property from month to month.

Appeal from District Court, Saline County; Dallas Grover, Judge.

Action by Mary Ellen Mitchell, a minor, by R. C. Mitchell, her father and next friend, against Owen Foran and another. From a judgment for plaintiff, defendants appeal.

Affirmed in part; reversed in part.

DAWSON HUTCHISON, and WEDELL, JJ., dissenting.

Z. C Millikin, and W. C. Millikin, both of Salina, for appellant Owen Foran.

C. W Burch, B. I. Litowich, La Rue Royce, L. E. Clevenger, and E. S. Hampton, all of Salina, for appellant Salina Firestone Service Stores Co.

W. S. Norris, Roy A. Smith, and Homer B. Jenkins, all of Salina, for appellee.

DAWSON Justice.

This was an action for damages for injuries sustained by plaintiff when she struck her leg on an awning hook on the sill of the front window of a business building in Salina.

Defendant Foran owned the building, and his codefendant, the Salina Firestone Service Stores Company, was the tenant.

The locus in quo was as follows: Fifth street in Salina runs north and south. On its east side is a cement sidewalk 12 feet 4 inches wide. Facing westward on that street is a two-story brick building 50 feet wide. It has two storerooms on the ground floor and two apartments on the second floor. Access to the apartments is by a stairway from the street front and between the two storerooms.

Each storeroom has plate glass windows, divided by a recessed entrance to its doorway. The building sits back from the sidewalk about 6 inches. This 6-inch space is covered by cement, and makes a slight ledge about 1 1/2 inches above the level of the sidewalk. The sills of these plate glass windows are about a foot above this slight ledge, and are made of wood. These sills project outward 3 3/4 inches from the plate glass, but are not flush with the sidewalk; there being a margin of 4 1/4 inches of clearance between them.

The windows are equipped with canvas awnings which are manipulated by ropes. Small metal plates having prongs or hooks are screwed on the wooden windowsills and are used as fastenings for the awning ropes. One of these hooks was screwed on the bottom windowsill of the south storeroom, about 13 1/2 inches above the level of the sidewalk.

Defendant Foran erected this building in 1916. The work was done by a competent contractor, and the building was in good repair at the time of the occurrence which gave rise to this lawsuit. Foran's codefendant has been the tenant of the south storeroom for some years, and has used it for storage and supplies, not for retail trade. Its front door was usually kept locked. Goods for storage and for retail supplies were caried in and out of an entrance at the rear of the building.

On March 1, 1934, plaintiff, who was then 9 years old, resided with her parents in one of the upstairs apartments of the above-described building. About 5 o'clock in the afternoon, plaintiff and three other children, accompanied by plaintiff's mother, descended the stairway, all five of them joined hands, and, with the mother in the center, they started southward on the sidewalk. Plaintiff was on the extreme left of the quintette, next to the east side of the sidewalk. In some way which she could not describe her leg caught on one of the prongs of the metal plate on the windowsill and severely wounded her just below the knee. Her mother released her, and she was given temporary treatment and hospital services and attention later. Infection caused complications which kept her out of school for a time and retarded her progress in school for a year.

This action was begun to recover damages. Plaintiff charged defendants as landlord and tenant with negligence in various particulars.

The defendant Salina Firestone Service Stores Company answered with a general denial, admitted its tenancy of the south room on the ground floor, alleged that its occupancy was for warehouse purposes exclusively, that it kept the front door locked and used a rear door for carrying merchandise into and out of the building, and that the front of the building was in the same condition on March 1, 1934, as it had been during all the time of the tenancy. It also alleged:

That it placed no awning hooks on the building, that any such hooks were not used by it, and it did not know of their existence, and that the building was not out of repair, and "neither the front of said building, nor any attachments thereto, extended to or over the sidewalk in front of said building, and if the plaintiff, Mary Ellen Mitchell, sustained any injury at the time and place alleged in her petition, on account of coming in contact with any device attached to said building, such injury did not result while in the usual and ordinary use of said building, sidewalk or device; but such injury, if any was sustained, resulted from the negligence, carelessness and want of care on the part of the said Mary Ellen Mitchell. ***

"Wherefore, this answering defendant prays that the plaintiff take nothing in this action, and that it have its costs in this behalf expended; but if the plaintiff is awarded any damages against this answering defendant, this defendant prays that it may have judgment against the defendant, Owen Foran, for a sum equal to that awarded against it."

Defendant Foran's answer consisted of a general denial, admitted he was the owner of the building but was not in the occupation or control of it at the time of the accident, that neither the device claimed to have caused the injury, nor the building itself, extended to or over the sidewalk. He alleged that, if plaintiff suffered any injury, it did not result while she was in the usual and ordinary use of the sidewalk, but that such injury, if any, resulted from negligence, recklessness and want of care on the part of Mary Ellen Mitchell, and, if she came in contact with the awning hook, she did so while acting as a trespasser, and brought injury upon herself, and not by any person, fault, or want of care on the part of defendant; and that, if she did not speedily and permanently recover from the injury, it resulted from want of timely and adequate care.

The cause was tried before a jury, which returned a verdict for $900 against both defendants and answered special questions thus:

"1. Q. When the awning hooks were placed on defendant's building were such devices commonly and generally used as a part of awning equipment? Ans. Yes, but not in the position or location used in this case.

"2. Q. How long had the awning hook, claimed to have caused the injury, been upon defendant's building at the place it existed on March 1, 1934? Ans. According to evidence submitted approximately 17 or 18 years.

"3. Q. Prior to the date of this accident would an ordinarily prudent person in defendant's position, as owner or occupant of the building, have had reason to apprehend that the presence of the awning hook on the building, of which plaintiff complains, would likely cause injury to a person

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