Papakalos v. Shaka

• Decision Date: 04 February 1941
• Docket Number: No. 3217.,3217.
• Citation: 18 A.2d 377
• Parties: PAPAKALOS v. SHAKA.
• Court: New Hampshire Supreme Court

18 A.2d 377

PAPAKALOS

v. SHAKA.

No. 3217.

Supreme Court of New Hampshire. Hillsborough.

Feb. 4, 1941.

Transferred from Superior Court, Hillsborough County; James, Judge.

Action on the case by Athanasios Papakalos against Athan Shaka for negligence. The question of competency of the evidence to sustain a verdict for the plaintiff, which was raised by defendant's motion for a nonsuit made at close of plaintiff's evidence, was transferred to the Supreme Court without ruling, under an agreement that if there was such evidence there should be entered a judgment for the plaintiff in a sum specified.

Judgment for plaintiff.

Case, for negligence. Trial by jury after a view. At the close of the plaintiff's evidence the defendant moved for a nonsuit. The court, James J, did not rule upon this motion but, dismissing the jury, transferred the question of the competency of the evidence to sustain a verdict for the plaintiff. The parties agreed that if there is such evidence there should be entered a judgment for the plaintiff in a sum specified; otherwise that there should be a judgment for the defendant.

The defendant was the lessee of a three story building in Manchester. The ground floor of this building was divided into several retail stores; the upper floors into several tenements. The plaintiff rented one of these tenements from the defendant for three dollars per month. The building was old and without modern conveniences, the only running water in any of the tenements being in the one in which the plaintiff lived, and he was the only occupant of any of them.

On April 1, 1937, the plaintiff, while descending the only stairway giving access to the upper floors of the building, fell and broke his leg. This stairway was admittedly out of repair, all of the treads being badly worn and several of them broken, and it was constructed in such a way that it was dark even in the daytime. No artificial light was provided. The accident occurred in the evening after dark when the door at the foot of the stairs was closed so that no light from the street shone or reflected in upon it.

Further facts are stated in the opinion.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Ralph E. Langdell, of Manchester, orally), for plaintiff.

McLane, Davis & Carleton, of Manchester (John P. Carleton, of Manchester, orally), for defendant.

WOODBURY, Justice.

The defendant does not deny that the stairs were defective, but contends that the plaintiff is barred from recovery for four reasons. These are, first, that the defendant had not retained control of the stairway and so was under no duty with respect to it, second, that since the plaintiff, in consideration of a reduced rental, had agreed to take the premises in a condition which he knew was dangerous he "absolved the defendant from liability for injuries resulting from such condition," third, that the plaintiff had assumed the risk, and, fourth, that the evidence establishes conclusively that the plaintiff was guilty of contributory negligence.

The defendant's first contention to the effect that he was under no duty with respect to the stairway because he had not retained it in his control is based primarily upon the evidence that the plaintiff was the only occupant of any of the tenements, and so was the only person having any occasion to use the stairs, and upon the evidence that the plaintiff customarily bolted the outside door at the foot of the stairs when he went to bed and said that he could, had he chose, have bolted that outside door whenever he wished. This evidence fails to indicate that the plaintiff was in full control of all the tenements in the building. The evidence establishes that at the time of his fall he rented from the defendant only the rooms in which he actually lived and the fact that no one else then lived in the building did not give him any right to occupy or control any of the vacant tenements. They remained in the control of the defendant. Neither can it be found that the plaintiff was in control of all the tenements because he controlled the only toilet facilities in the building. While it may be unlikely that anyone could be found who would be willing to live in a place without access to running water, it is possible that such persons might be found, and it is also possible that the defendant, as he had done on a previous occasion as will appear hereafter, could have worked out some arrangement where by other tenants in the building could use the facilities in the plaintiff's tenement. Furthermore the evidence that the defendant at various times made unsuccessful attempts to rent vacant tenements to other persons indicates that he did not consider the plaintiff to be in sole control of the entire part of the building used for living purposes. The situation is not changed by the evidence that the plaintiff bolted the outside door because he testified that he did so only because he was the only occupant of any of the tenements and would not have done so had others lived on the upper floors of the building. The fact that at the time of his injury the plaintiff was the only tenant actually living in the building did not give him full control of the stairs leading to his and the other tenements. They were a part of the premises which the defendant furnished for the general use of such tenants as he might have and so he was under a duty to use ordinary care to keep them in reasonably safe condition for any use which "might be found to be contemplated." Saad v. Papageorge, 82 N.H. 294, 296, 133 A. 24, 25; Gobrecht v. Beckwith, 82 N.H. 415, 135 A. 20, 52 A.L.R. 858.

The defendant in support of his second contention does not argue that he was under no duty toward the plaintiff with respect to the stairs but asserts that the plaintiff by his conduct had relieved him of that duty. There is no evidence of any explicit agreement whereby the plaintiff undertook to exonerate the defendant from liability in case he should be injured as a result of the defective condition of the stairway, but the defendant seeks to infer such an agreement from the evidence of his dealings with plaintiff. This evidence is that during 1934, 1935, and part of 1936, one Bucio rented the tenement in which the plaintiff later lived and that during those years the plaintiff lived in another tenement in the...