Pessagno v. Euclid Inv. Co.

• Decision Date: 29 April 1940
• Docket Number: No. 7401.,7401.
• Citation: 72 App. DC 141,112 F.2d 577
• Parties: PESSAGNO v. EUCLID INV. CO., Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

72 App. DC 141, 112 F.2d 577 (1940)

PESSAGNO v. EUCLID INV. CO., Inc.

No. 7401.

United States Court of Appeals for the District of Columbia.

Argued February 9, 1940.

Decided April 29, 1940.

Rehearing Denied June 15, 1940.

Salvatore E. Leonardo and J. Harry Welch, both of Washington, D. C., for appellant.

Henry I. Quinn, of Washington, D. C., for appellee.

Before GRONER, Chief Justice and EDGERTON and RUTLEDGE, Associate Justices.

GRONER, C. J.

Appellant was injured by a fall on the private driveway of the apartment house at 1616, 16th Street, N. W., Washington City, and brought this action against appellee, the owner, for damages. The complaint charged negligence in failing to exercise due care to keep the pavement of the driveway in reasonably safe condition for the use of tenants and their guests. The accident happened around nine o'clock in the evening when plaintiff, the guest of a tenant, was leaving to take a cab. The day was cold and rainy, and the driveway and streets were slippery and dangerous from ice forming as the rain fell. As appellant was walking the short distance to the taxicab, in the exercise of the utmost care for her own safety, "both feet slipped out from under her", as the result of which she sustained the injury. At that time it was still raining and freezing, and she observed that there was neither sand nor ashes upon the steps or driveway.

At the close of all the evidence, appellee moved for a directed verdict, but the judge reserved his decision, and the jury found for appellant. Thereafter appellee moved the court to set aside the verdict and enter judgment in its favor in accordance with its motion, or, in the alternative, to grant a new trial. The court decided that negligence had not been proved, set aside the verdict, and entered judgment for appellee in accordance with Rule 50(b).¹

The facts of the case raise a single question: Is a landlord, who rents apartments in his building to various tenants and reserves control of the common approaches, obligated to use reasonable care, during the progress of a storm, to remove or render harmless ice forming thereon from natural causes? The precise question appears never to have been decided in the District of Columbia, but in New York it has been held that there is no such duty.²

In Massachusetts and Washington State it was held that, in the absence of an express or an implied contract to do so, the owner is under no obligation to remove snow or ice forming from natural causes on a common passageway to an apartment building.³ But in Connecticut, Colorado, and Oregon, the rule seems to be that an owner who knows or ought to know of the dangerous condition of a common passageway, caused by the accumulation of snow or ice, is bound to exercise reasonable diligence to remove the danger.⁴

Here, the learned trial judge was persuaded to enter judgment for the appellee on the authority of Kelly v. Manhattan Ry. Co., 112 N.Y. 443, 20 N.E. 383, 386, 3 L.R.A. 74. In that case the injury was sustained by a passenger descending from the station platform of an elevated street railway. The steps were slippery from an accumulation of ice caused by a storm which had been in progress most of the night. The New York court held that the failure to remove the ice during the storm or immediately after its abatement was not actionable negligence: "The defendant had furnished a covered stairway, with handrails, and pieces of rubber on each step to prevent slipping; and the failure to throw ashes or sawdust, or something of that character, upon the steps during the storm cannot be regarded as negligence, because the continuance of the storm would soon render the steps as slippery as before; and it seems to us that culpable negligence cannot be predicated upon the failure to clean off the steps between the time the storm ceased, which was between 3 and 4 o'clock in the morning, and the time when the accident happened. So brief a period as that, at such a time in the night, cannot, we think, be regarded as any evidence of a lack of that reasonable care which the defendant was bound to exercise."

The circumstances of that case were unusual. We think reliance upon it was wrong, and that the Massachusetts and New York rule overlooks the obligation of the owner of a large apartment house not only to exercise ordinary care to construct the approaches and other parts of the building under his exclusive control so that they will be reasonably safe, but likewise, after notice, to exercise ordinary care to keep them free from conditions, whether permanent or temporary, which make them dangerous to the tenants or their guests. Wardman v. Hanlon, 52 App.D.C. 14, 280 F. 988, 26 A.L.R. 1249.

If, therefore, appellee in the case under consideration knew or in the exercise of ordinary care ought to have known of the dangerous condition of the driveway and failed to exercise the degree of care which an ordinarily prudent person, in view of existing circumstances, would have exercised to avoid injury to a person lawfully using it in the exercise of due care for his own safety, appellant was entitled to a verdict. There was uncontradicted testimony that the superintendent of the building realized the danger to pedestrians using the entrance and had the icy places sanded on four different occasions from 6 o'clock in the morning until 5 or 5:30 o'clock in the afternoon. But at 9:30 that evening, when appellant was injured, there was no evidence of sand on the walkway. If this testimony is accepted, obviously the sand had been washed away. The question whether, in these circumstances, what was done was reasonable care was, in our opinion, a question for the jury under proper instructions from the court.⁵

In adopting this rule, we are not, as counsel say, imposing on the owner of the premises a burden physically impossible to discharge or one which makes the owner the guarantor of the safety of his tenants and their guests. We do not hold there was an absolute duty to provide a safe entrance or to keep it safe by extraordinary or unusual means. If the storm made the spreading of sand or ashes or some other preventive impossible or even useless, no reasonable person would expect it to be done, or if the spreading of sand every two or three hours might be expected to accomplish reasonable safety, what appellee did in that regard was sufficient. All that we hold is that there was a duty in the circumstances to be reasonably alert that persons lawfully using the property should be safeguarded against danger which could, in the exercise of ordinary care, be foreseen and prevented.

A more difficult question remains to be decided. Appellant, at the end of her brief, urges that the judgment was erroneous and "should be set aside and a new trial granted". This raises a unique question under the new rules. The court reserved its decision on appellee's motion for a directed verdict. The jury then found for appellant. Appellee renewed its motion for judgment in its favor notwithstanding the verdict "or, in the alternative, for a new trial." The grounds of the motion were: (1) that all the testimony in the case taken in the light most favorable to the plaintiff did not establish any liability on the part of the defendant; (2) the verdict was contrary to the evidence and the law; and (3) the jury was swayed by sympathy and ignored the evidence in the case. The learned trial judge was of opinion that no negligence had been proved and ordered that the verdict and judgment for plaintiff be set aside and judgment entered for the defendant as upon a verdict directed in its favor. We have, then, a case where the trial judge reserved his ruling on a motion for a directed verdict, then erroneously set aside the verdict, entered judgment for the defendant, and did not pass on the motion for new trial. Rule 50...