Schedler v. Wagner

• Court: Washington Supreme Court
• Writing for the Court: PER CURIAM; MALLERY; BEALS
• Citation: Schedler v. Wagner, 37 Wn.2d 612, 230 P.2d 600 (Wash. 1951)
• Decision Date: 30 April 1951
• Docket Number: No. 31449
• Parties: , 26 A.L.R.2d 604 SCHEDLER et ux. v. WAGNER et ux.

Page 612

37 Wn.2d 612

230 P.2d 600, 26 A.L.R.2d 604

SCHEDLER et ux. v. WAGNER et ux.

No. 31449.

Supreme Court of Washington, en Banc.

April 30, 1951.

Rehearing Denied June 22, 1951.

Edge, Davenport & Edge, Jack Dean and Grant L. Kimer, all of Spokane, for appellants.

Joseph Nappi, Lloyd A. Eyrich, Spokane, for respondents.

PER CURIAM.

Upon a rehearing a majority of the court adheres to the principles of law as announced in the departmental opinion. However, a further examination of the record convinces us that there is a serious question of fact as to whether or not the walk upon which respondent wife slipped and fell was a private passageway leased exclusively to respondents, or whether it was used in common by all of the tenants. This particular issue of fact was not presented to the jury. No exception was taken by appellants for failure to present such issue of fact and the instructions given by the court therefore became the law of the case.

No motion for a new trial was made and that issue is not before us. The judgment of the trial court will therefore be affirmed.

MALLERY, Justice.

I dissent. No negligence was shown.

BEALS, Justice (concurring in the result).

Because of the peculiar facts presented in the case at bar, while not dissenting from the conclusion reached by the majority, I cannot refrain from stating that, in my opinion, a landlord who has, on occasion, removed snow or ice (or has sanded or salted the ice) from a walk used in common by his tenants, has not, by so doing, assumed the burden of keeping the walks free from snow and ice in the future, under penalty of becoming responsible in damages to any tenant who is injured by a fall on such a walk, occasioned by...