Reynolds v. Trbovich, Inc.

• Decision Date: 20 October 1949
• Docket Number: 8879.
• Citation: 210 P.2d 634,123 Mont. 224
• Parties: REYNOLDS v. TRBOVICH, INC.
• Court: Montana Supreme Court

210 P.2d 634

123 Mont. 224

REYNOLDS v. TRBOVICH, INC.

No. 8879.

Supreme Court of Montana

October 20, 1949

Gussie Reynolds sued Trbovich, Inc., a corporation, for injuries sustained by plaintiff tenant when she fell on a stairway in building owned by defendant.

The Third Judicial District Court, Deer Lodge County, William R Taylor, J., entered judgment for defendant and plaintiff appealed.

The Supreme Court, Bottomly, J., affirmed judgment, holding that evidence sustained judgment for defendant and that an objected to instruction was not prejudicial to plaintiff.

Meyer & Meyer, Butte, for appellant.

Horace J. Dwyer, Anaconda, S. O. Meyer, Butte, argued orally.

J. B C. Knight, Anaconda, argued orally, for respondent.

BOTTOMLY, Justice.

This is an action by Gussie Reynolds to recover damages for personal injuries sustained by a fall on the stairway in a building of which she was a tenant. Issues being joined, the cause was tried to a jury, resulting in a verdict in favor of defendant on which judgment was entered. Plaintiff's motion for a new trial, after hearing thereon, was denied. Plaintiff has appealed from the judgment.

Plaintiff first contends that the evidence is insufficient to sustain the verdict and judgment.

The undisputed evidence discloses the following facts:

Trbovich Incorporated, a corporation, is a family affair, all of the stock thereof being owned by Steve Trbovich and his children. At all times since July 1946 the corporation has owned and operated a two story brick building located at 800 East Park Street, Anaconda, Montana. The first or ground floor of the building is used by the defendant corporation for conducting a grocery store and meat market. The second story is divided into seven apartments and two single rooms, all of which are rented to the public for living quarters with the exception of the apartment occupied by Steve Trbovich and family. The apartments and rooms open into a hall which leads to a stairway which leads from the second floor to the Park Street level. This inside stairway is the only way of ingress and egress to the apartments and rooms.

The plaintiff first rented an apartment in the Trbovich apartments in December 1945, where she kept house for herself and Howard Jackson, her son by a former marriage, until April 1946, when they moved to Butte. She returned and again rented an apartment from defendant in June 1946 and they continued to reside there until December 1946 when they again moved to Butte.

In the morning at approximately ten o'clock on October 22, 1946 plaintiff left her apartment to go down the stairs for a bottle of cream. She fell on the stairs, coming to rest on the landing which was located in and as a part of the stairs and being seven steps from the floor level of the hall, which served the apartments and rooms, thereby sustaining the injuries complained of.

The testimony as to the cause of plaintiff's fall and the condition of the stairs at and prior to the time of the accident, by the witnesses of the plaintiff and the witnesses for the defendant, is in irreconciliable conflict, and no useful purpose would be served by quoting the testimony herein. It is suffice to say that wherever there is a conflict in the evidence this court may only review the testimony for the purpose of determining whether or not there is substantial evidence in the record to support the verdict of the jury, and must accept the evidence there found as true, unless that evidence is so inherently impossible or improbable as not to be entitled to belief; and where a verdict is based upon substantial evidence which from any point of view could have been accepted by the jury as credible, it is binding upon this court, although it may appear inherently weak. Williams v. Thomas, 58 Mont. 576, 194 P. 500; Chicago Title & Trust Co. v. O'Marr, 25 Mont. 242, 64 P. 506; Hanson Sheep Co. v. Farmers' & Traders' State Bank, 53 Mont. 324, 163 P. 1151; Watts v. Billings Bench Water Ass'n, 78 Mont. 199, 253 P. 260.

Where the evidence is conflicting but substantial evidence appears in the record to support the judgment, the judgment will not be disturbed on appeal, and this is especially true when the court, as here, has passed upon the sufficiency of the evidence on motion for a new trial and upheld its sufficiency. Bank of Commerce v. United States Fidelity and Guaranty Co., 58 Mont. 236, 194 P. 158; Robinson v. F. W. Woolworth Co., 80 Mont. 431, 438, 447, 261 P. 253; Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 74, 37 P.2d 1025; Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 66 A.L.R. 587; see also: Whorley v. Koss, Mont., 206 P.2d 809, and cases therein cited.

This court will not substitute its judgment for that of the jury especially where, as here, the trial court has approved the verdict by denying the motion for a new trial. See: Fulton v. Chouteau County Farmers Co., s...