Nash v. Searcy
| Decision Date | 09 November 1934 |
| Citation | 256 Ky. 234 |
| Parties | Nash v. Searcy. |
| Court | United States State Supreme Court — District of Kentucky |
1. Landlord and Tenant. — Stairway not rented to any tenant was reserved under landlord's control so as to burden him with duty to maintain it in reasonably safe condition for use by those having right to do so, among whom was tenant's employee.
2. Landlord and Tenant. — Landlord's liability to keep stairway not leased to any tenant in reasonably safe condition for use, is one sounding in tort and rests on negligence, and does not arise from breach of contract.
3. Landlord and Tenant. — Landlord held as matter of law not liable for injury to tenant's employee falling on steps not leased to any tenant, where such employee only showed slight reduction from state of perfect condition of some of steps when first built, not rendering them dangerous or unsafe for use.
4. Landlord and Tenant. — In determining whether tenant's employee suing landlord for injuries in fall on stairway made case for jury, court will weigh only testimony for plaintiff to ascertain whether it established dangerous and unsafe condition of stairway.
5. Landlord and Tenant. — Tenant's employee suing landlord for injuries in fall on stairway must prove that landlord negligently permitted steps to become in dangerous state of nonrepair, describing it, and that described defects were reasonably calculated to produce that condition and were proximate cause of fall where-by she sustained injury.
6. Landlord and Tenant. — Landlord's liability to keep stair not leased to any tenant in reasonably safe condition for use, does not require perfect or guaranteed safety.
7. Appeal and Error; Trial. — In personal injury action, permitting jury to view premises where injury occurred is largely within discretion of trial court, and its action will not be disturbed unless such discretion has been abused (Civil Code of Practice, sec. 318).
8. Trial. — In action by tenant's employee against landlord for injury in fall on stairway, court abused discretion in not permitting jury to view premises, where building was short distance from courthouse and steps were in same condition as at time of injury (Civil Code of Practice, sec. 318).
9. Trial. — In action by tenant's employee against landlord for injury in fall on stairway, instruction authorizing recovery for anything that might have happened to steps, though not embraced in any of three complaints which plaintiff relied on in petition, was erroneous.
Plaintiff specified dereliction of defendant by stating he had negligently permitted steps to become uneven, out of alignment, and covered with grease, while instruction submitting plaintiff's case was general in terms and authorized verdict against defendant if he falied to maintain steps and stairway in reasonably safe condition for purpose for which they were used, and, as result of such failure, steps and stairway became unsafe or dangerous.
Appeal from Kenton Circuit Court
JOS. P. GOODENOUGH for appellant.
ODIS W. BERTELSMAN for appellee.
Reversing.
The appellant and defendant below, W.A. Nash, owns a six-story business building in Covington, Ky the different floors of which, at the time of the happening here involved, were rented to various tenants, except the fifth which was occupied by defendant as a tailoring establishment; while the sixth one was occupied by a tenant, Martin Kreis, who was engaged in the manufacturing of men's coats for the completed suits made by defendant in his business conducted on the fifth floor. However, Kreis, the sixth floor tenant, conducted his business entirely independently from that of defendant on the floor immediately below, the latter having no control over the making of the coats made on the sixth floor, except to see that it was done according to contract. Kreis employed in his department on the sixth floor from forty to fifty women and girls in the making of coats for defendant under his contract with the latter, among whom was the appellee and plaintiff below, Alma Searcy, who was about nineteen years of age. She was married at the time, but her husband had separated from her and she was first employed by Kreis between the 1st and 15th of March, 1932.
On the 14th day of June of that year, and about the hour of 11:45 a.m., she was preparing to eat her lunch that she had brought from her home, when she started down the stairway from the sixth floor to the fifth floor from whence she would take an elevator to the first floor of the building; and, when on either the second or third step from the top of the stairway, she fell to the bottom of it and sustained injuries consisting of bruises on various parts of her body and culminating, as she claimed, in a miscarriage that happened about one month thereafter. She later, by her next friend, filed this action in the Kenton circuit court against defendant to recover damages that she sustained, upon the ground that the stairway down which she fell was under his charge and control as owner of the building, and that it was his duty to keep it in reasonable repair for the safety of those having the right to use it, including herself, and that he had failed to perform that duty. In describing defendant's derelictions she mentioned only these: "That defendant permitted the steps to become uneven and out of alinement and permitted oil and grease to accumulate thereon; and failed to have sufficient light in said stairway necessary for the use of same." Defendant's answer denied the material averments of the petition and contained a plea of contributory negligence, which was denied by reply, and upon trial the jury, under the instructions given by the court, returned a verdict in favor of the plaintiff for the sum of $1,500, upon which judgment was rendered. Defendant's motion for a new trial having been overruled, he prosecutes this appeal, relying through his counsel upon a number of grounds as reversible errors; but our careful examination of the record convinces us that only three of them are sufficiently meritorious to require our consideration, and which are: (1) That the court erred in overruling defendant's motion for a peremptory instruction in his favor; (2) error of the court in overruling defendant's motion made three times during the trial for a view of the premises by the jury; and (3) error in some of the instructions submitted to the jury, each of which will be considered and determined in the order named.
1. The stairway down which plaintiff fell was not rented by defendant to any of the tenants occupying any portion of his building, and which had the effect to reserve it under his control so as to burden him with the duty to maintain it in a reasonably safe condition for use by those having the right to do so, among whom was plaintiff as an employee of the lessee, Martin Kreis. That the duty mentioned is so imposed upon a landlord in such circumstances is clearly recognized as a firmly settled principle in the law cannot be gainsaid. It is so much so that we deem it unnecessary to encumber this opinion with but a limited number of adjudged cases and texts so declaring. Among the latter is the extensive annotation in 25 A.L.R., beginning on page 1273, and extending to and including page 1340. At the threshold of that annotation the general principle is stated to be, "that the owner of a building who leases it to different tenants, and expressly or impliedly reserves portions thereof, such as halls, stairways, porches, walks, etc., for the use in common of different tenants, is liable for any personal injury to a tenant, or a person in privity with a tenant, due to defects in the portion of the leased premises of which the landlord so retains control, provided the defect is ascribable to the negligence of the landlord, and the tenant or person injured is not guilty of contributory negligence."
To the same effect is the text in Tiffany on Landlord and Tenant, vol. 1, secs. 628-632, both inclusive, and sec. 664. The principle has been approved and applied by us in an unbroken line of cases, some of which are: Mills' Administrator v. Cavanaugh, 94 S.W. 651, 29 Ky Law Rep. 685; Dodson v. Herndon, 147 Ky. 181, 143 S.W. 1011; Home Realty Co. v. Carius, 189 Ky 228, 224 S.W. 751; Richmond v. Standard Elkhorn Coal Co., 222 Ky. 150, 300 S.W. 359, 58 A.L.R. 1423; Consolidation Coal Co. v. Zarvis, 222 Ky. 238, 300 S.W. 615. 58 A.L.R. 1430; Black Star Coal Co. v. Garland, 228 Ky 473, 15 S.W. (2d) 265, and the same case on second appeal in 235 Ky. 204, 30 S.W. (2d) 900. Many others are cited in those opinions, and which establish our adoption of the legal principle as so declared by the cited texts.
However, our investigation of the question has revealed some confusion in the statements of the principle of law under which the landlord may be so held liable because of the failure to clearly point out the basic grounds therefor. As an illustration, the investigator will constantly come upon an expression saying that "the landlord is under a duty to maintain the safety of such portions of the entire rented premises as he retains under his control and not specifically rented to any particular tenant," and that as a consequence thereof, "he must exercise ordinary care to maintain them in reasonably safe condition." Such expressions, we repeat, are somewhat confusing, in that they tend to convey the idea that the landlord is under an absolute duty to maintain in safe condition the premises producing the injury to plaintiff, as though it was contractual, and at the same time excuses him from its performance if he has exercised ordinary care in the premises, and which involves notice to him of the defect either actual or constructive, the latter of which would be imputed if the defects had existed for a sufficient time for him to discover them in the exercise of ordinary care. Such apparent confusion is due to...
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