Revell v. Deegan, 3780
| Decision Date | 18 June 1951 |
| Docket Number | No. 3780,3780 |
| Citation | 65 S.E.2d 543,192 Va. 428 |
| Court | Virginia Supreme Court |
| Parties | , 26 A.L.R.2d 462 WILLIAM HENRY REVELL v. HATTIE STIRIZ DEEGAN. Record |
Louis Lee Guy and Clyde W. Cooper, for the plaintiff in error.
Rixey & Rixey and William G. Maupin, for the defendant in error.
William Henry Revell, hereinafter called the plaintiff, filed an action at law in the court below against Hattie Stiriz Deegan, hereinafter referred to as the defendant, to recover damages for personal injuries alleged to have been sustained as the proximate result of the defendant's negligence.
The plaintiff alleged that he had been for several years the tenant or lessee of a second-floor apartment in a building owned by the defendant; that while descending a wooden stairway leading from the rear porch on the second floor to the ground, which stairway was reserved by and under the control of the defendant and intended for the common use of all of the occupants of the building, he fell to the ground and was injured; and that his fall and injuries were proximately due to the negligence of the defendant, in that she had failed to maintain and keep the stairway in a reasonably safe condition.
By proper pleadings the defendant denied that she was guilty of any negligence which proximately caused the plaintiff's injuries, and averred that he had been guilty of contributory negligence.
At the conclusion of the plaintiff's evidence the defendant declined to offer any evidence and moved the court to strike the evidence on the ground that it failed to show that she was guilty of any actionable negligence and that it disclosed that the plaintiff had been guilty of contributory negligence. The motion was overruled and the case submitted to the jury which returned a verdict for the plaintiff in the sum of $10,000.
Subsequently, upon motion of the defendant, the verdict was set aside and a final judgment entered in her favor. The case is now before us on a writ of error awarded the plaintiff. The sole question involved is whether the evidence is sufficient to sustain the verdict.
Since 1946 the plaintiff, who was fifty-two years old and a longshoreman by occupation, and his wife had been tenants of one of four apartments on the second floor of the building, located at number 314 Westover avenue, in the city of Norfolk. In the rear of the building on the second floor is a porch about 10 by 4 feet in size. An uncovered wooden stairway consisting of sixteen steps leads from the rear porch to the ground. On either side of the stairway is a top handrail constructed of two pieces of 2' by 4' pine timbers, each about 8 feet long. The upper end of each upper handrail is nailed to one of the upright posts which support the porch roof. The lower end of each upper handrail is attached to the top of an upright post located about half way up the stairway. A lower section of the handrail extends from this post to the top of another upright post on the ground.
The stairway and rear porch are used in common by the occupants of the second-floor apartments.
The defendant, Hattie Stiriz Deegan, had owned a one-half interest in the building since April, 1945. She acquired the other half interest under the will of her father, Charles H. Stiriz, who died some time in the year 1948.
On May 28, 1949, after the plaintiff had returned from work and had his evening meal, he went out on the street and met a friend, Jimmie Willoughby, who lived in the neighborhood. Willoughby, who had been drinking, said that he had gone to a local tavern to buy some beer but the proprietor had declined to serve him. Thereupon Willoughby gave the plaintiff the money with which the plaintiff purchased and delivered to Willoughby six or eight bottles of beer. The plaintiff and Willoughby took the beer to the plaintiff's apartment where they sat talking and drinking for a period of about three hours, or until about midnight. During this time the plaintiff says he drank two bottles of the beer while Willoughby consumed the rest. Willoughby, the plaintiff said, although not drunk, 'was feeling pretty good.' The plaintiff denied that he had reached even the latter state.
The shortest way from the plaintiff's apartment to Willoughby's home was down the rear stairway and across a vacant lot to the street beyond. As a 'courtesy' Revell undertook to accompany Willoughby down the stairs, while Mrs. Revell remained on the porch at the head of the stairs. These three persons were the only eyewitnesses to what then occurred.
The plaintiff says that he started down the stairs first and after he had taken 'a step or two,' he 'took hold of' the righthand rail which broke, throwing him off his balance; that he instinctively 'reached to grab something,' caught hold of Willoughby, and that together they feel from the steps to the paved yard below, a distance of some eleven or twelve feet. It is not controverted that the plaintiff sustained severe injuries as a result of the fall.
According to the plaintiff, the guide rail broke at a point opposite the second step from the top, or six steps above the central upright to which the lower end of the eight-foot rail was attached. At the time the rail broke, he said, he did not have hold of his companion, Willoughby, nor did Willoughby fall against him thereby causing the rail to break.
'What caused the rail to break?' he was asked. 'I don't know,' he replied. Again he was asked, 'What occasion did you have for putting your weight on the rail?' to which he replied, on the rail?' to which he replied, to put my weight on the rail.'
Mrs. Revell's testimony throws little light on the situation. She said that when her husband reached the third step and while he had 'hole of the banister' it broke. Although Willoughby was summoned to testify for the plaintiff he was not present at the trial.
The plaintiff further testified that although he had lived in the apartment and had made frequent use of the stairs for more than two years, he had seen no 'rotten places' in the rail which appeared to be 'perfectly all right.'
L. J. Deegan, the husband of the defendant, was called as an adverse witness for the plaintiff. He testified that shortly after Mrs. Deegan's father (Stiriz) died, the exact time of which is not shown in the record but is conceded by both sides to have been shortly before the accident, he (Deegan) inspected the premises to see what repairs should be made. He examined the stairs, he said, and saw no evidence of any 'defect' or 'rottenness' in the railing. Although he observed a crack in the lower end of the rail where it was attached to the upright post, he tested the rail, 'leaned on it,' 'pushed down on it,' saw no defect therein, and was of opinion that it was 'safe.'
This witness further testified that he had been employed by the United States Army Engineers as a 'building specialist inspector' for two years, was a graduate engineer, and had been 'in the building game for thirty-five years.'
Among the original exhibits before the jury, and certified to us, is a 22-inch section of the lower end of the broken rail. This section is approximately 2 inches in thickness and 2 1/4 inches in width. The top of the section, while weatherstained, appears to be sound. The crack, which Deegan says he saw, extends 13 inches along the bottom of the section, but the wood on both sides of it is sound.
A portion of the outward edge of the section, extending along a weathered crack, has been split off. When and how this split was made is not shown by the evidence, but it discloses that the...
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