O'Neil v. Noe

• Decision Date: 29 January 1946
• Parties: O'NEIL v. NOE.
• Court: Kentucky Court of Appeals

192 S.W.2d 366

301 Ky. 472

O'NEIL v. NOE.

Court of Appeals of Kentucky

January 29, 1946

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

Action by Mrs. Myrtle Noe against C. G. O'Neil, doing business as C. G. O'Neil & Son, for injuries sustained in a fall down a stairway. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with directions.

Thos F. Young, of Corbin, and Stephens & Steely, of Williamsburg for appellant.

R. L Pope, of Knoxville, Tenn., and Oscar Black, of Corbin, for appellee.

CAMMACK Justice.

Mrs Myrtle Noe obtained a judgment for $2500 against C. G. O'Neil as damages for personal injuries sustained by her in a fall down a stairway in an apartment building in Corbin which was leased by Mr. O'Neil and rented out by him to others. Reversal is urged upon the grounds that (1) Mrs. Noe's petition did not state a cause of action; (2) Mr. O'Neil was entitled to a peremptory instruction; (3) the court erred in instructing the jury; and (4) the amount of the recovery is excessive.

In substance the petition charged that Mr. O'Neil negligently and carelessly permitted the lights in the hallway and stairway to get out of repair; that there was a break in the hall floor; and that the floor plank at the head of the stairs was defective, broken and worn away. While the petition is somewhat ineptly drawn, we believe it was sufficient to state a cause of action.

Mrs. Noe testified that she had gone to the apartment building about three o'clock in the afternoon of September 9, 1944, to visit her nephew, Herbert Cummins, who had been living in the building for three or four months. This was her second visit to the place. As to the manner in which she sustained her fall, Mrs. Noe said:

'I had been visiting my nephew and had started home and I came out of his apartment out into the hall and it was dark and I started down stairs and the first step I took my foot went and I went on.' She said she fell to the bottom of the stairs. Mrs. Noe placed the time of the accident at eight or eight-thirty o'clock, while her nephew said that it happened about seven o'clock. Mr. O'Neil's testimony placed the time at around six-thirty o'clock and in broad daylight. Herbert Cummins said that the lights had been out of repair for some time, but that they would work on occasions. Mrs. Noe's husband visited the scene the next day and he said that the top step was split, that it sloped downward and when one stepped upon it it had a tendency to give way. He said also there was a small hole in one of the floor planks at the head of the steps. Herbert Cummins' testimony on these points was to the same effect. The testimony for Mr. O'Neil was that the lights were in good repair, were on at the time of the accident and that there were no defects in the steps or the hall floor.

Mrs. Noe was badly bruised, but no bones were broken. She was treated by Dr. Parker for several months. She said that she was unable to perform her work of cleaning wall paper, that she was unable to do housework and that she suffered a great deal. While Dr. Parker said Mrs. Noe had not recovered at the time he examined her shortly before the trial, he would not say that her injuries were permanent.

A careful examination of Mrs. Noe's testimony does not reveal that she said she fell because of any defect in the top step, or that her fall was caused by reason of the lights being out. S...