Talley v. Curtis

• Decision Date: 25 March 1939
• Parties: TALLEY v. CURTIS.
• Court: Tennessee Court of Appeals

129 S.W.2d 1099

23 Tenn.App. 181

TALLEY v. CURTIS.

Court of Appeals of Tennessee, Middle Section.

March 25, 1939

Certiorari Denied by Supreme Court July 1, 1939.

Appeal in Error from Second Circuit Court, Davidson County; A. B Neil, Judge.

Action by W. H. Talley against W. B. Curtis to recover for injuries sustained by the plaintiff while descending defective steps at a house which the defendant had rented to the plaintiff. A judgment was entered on a directed verdict in favor of the defendant, and the plaintiff appeals in error.

Judgment affirmed.

Walker & Hooker, of Nashville, for plaintiff in error.

Elkin Garfinkle and Dan Garfinkle, both of Nashville, for defendant in error.

FAW Presiding Judge.

This is an appeal in error by W. H. Talley, plaintiff below, from a judgment of the Second Circuit Court of Davidson County dismissing his suit at his cost.

Plaintiff sued his landlord, W. B. Curtis, to recover damages for personal injuries sustained by plaintiff in a fall while descending a flight of outside wooden steps to a dwelling-house in which plaintiff and his family lived. It is averred in plaintiff's declaration that "when the plaintiff was in the act of leaving his residence to go to work on the early morning of October 19, 1937, and stepped upon said steps the same broke and gave way causing him to fall violently to the ground, as a direct and proximate result of the rotten, deteriorated and defective condition of said steps, all of which was, or, in the exercise of ordinary care, should have been known by the defendant", and that, "as a direct and proximate result of the negligence and carelessness of the defendant's failure to keep said premises in repair and in permitting said steps to become rotten, deteriorated and defective, as aforesaid plaintiff was permanently and otherwise injured."

The case was tried to a jury upon the issues made by defendant's plea of the general issue--not guilty--to plaintiff's declaration, and the jury found the issues in favor of the plaintiff and assessed his damages at $750, and judgment was rendered accordingly.

But the Trial Judge sustained the defendant's motion for a new trial, set aside the former judgment and dismissed plaintiff's suit at his cost--holding that he had erred in denying defendant's motion for a directed verdict made at the close of the evidence. Thereupon the plaintiff moved for a new trial, upon the ground that the Court erred in sustaining defendant's motion as aforesaid, and in dismissing the suit, which motion of plaintiff was overruled. The plaintiff excepted to the action of the Court in overruling his motion for a new trial, and prayed an appeal in the nature of a writ of error to this Court, which appeal was granted by the Court and perfected by the plaintiff.

Assignments of error on behalf of plaintiff have been filed in this Court, which assignments (it is conceded on plaintiff's brief) may be resolved into the single proposition that the trial court erred in sustaining defendant's motion for a directed verdict.

At the time of the trial below, in June, 1938, plaintiff, W. H Talley, was fifty-four years of age. He suffered the injuries, for which he sued in this case, on October 19, 1937, at which time he and his family were living in a house owned by defendant Curtis at 716 North Second Street in the city of Nashville, and plaintiff was then, and had been for eight years theretofore, working as an elevator operator at the YMCA in Nashville. At the time of his injury, plaintiff had been occupying the house in question, as a tenant of defendant from "month to month", for approximately three years and ten months, at a monthly rental of $12.50.

Plaintiff fell, and was thereby injured, while descending a flight of four steps which led from a side porch to the ground, or "brick walk," at 6 o'clock in the morning, as he was "starting to work". When asked "What caused you to fall?" plaintiff replied: "a piece of the step bursted off and threw me." Plaintiff testified further that it was the second step from the top that "gave way"; that "there is three pieces across the step to step on, and the outside one extends over just a little; I don't know how much. Well, when I stepped on this, it bursted off with me", and that he fell on the steps and his head hit the edge of the floor back behind him and he was rendered unconscious for a few moments.

There is evidence that plaintiff sustained substantial injuries as a result of his aforesaid fall; but the extent of his injuries is not material to the question for decision on this appeal.

It appears that, before plaintiff was injured, both plaintiff and defendant had knowledge that the steps in question were in a defective condition. Plaintiff testified that, in the summer of 1937, he told defendant of the defective condition of the steps, and they (plaintiff and defendant together) "stopped there and looked at the steps" and defendant "went out and got his hammer and nails" and "drove a nail or two in the step" and "made this remark, that it won't hold, I will have to put in new steps"; but that defendant did not put in any new steps until after plaintiff was "hurt".

It appears that there were three flights of steps affording ingress to and egress from the house in question--"one in the front, one in the back, and one on the side." Plaintiff fell on the side steps. Plaintiff stated in his testimony that, after he and defendant examined the side steps in the summer of 1937 as aforestated, he (plaintiff) continued to use said steps daily, knowing they were dangerous, until he was injured as aforesaid on October 19, 1937; he did not use the front steps because he had that part of the house "rented out", and "the back steps were worse than the front".

Mrs. Talley, wife of plaintiff, testified that she had repeatedly asked defendant (when he came to collect the rent) to "fix" the steps, and defendant "said the nails wouldn't even hold them, they were so rotten."

Mrs. Talley also stated that the side steps were so bad she "didn't use them very much"; that she used the back steps, but that she "really was careful, because the back ones were bad too."

The defendant stood on his motion for peremptory instructions, and did not introduce any evidence.

The record recites that the trial court sustained defendant's motion "upon the ground that the plaintiff had full knowledge of the dangerous condition of the steps". In thus ruling, the learned Trial Judge was applying a general principle of law applicable to negligence cases, which is stated in 20 R.C.L., pages 14, 15, section 10, as follows:

"Of necessity there are in every controversy involving the question of negligence or the absence thereof two parties: the defendant and the person injured, or his representative. And ultimately, in determining whether a recovery shall be allowed, it is essential to view the conduct of injurer and injured as a whole and note the bearing that the acts of each had upon the resultant injury. Since, as we have seen, knowledge of the parties is the test of liability, the question in any negligence action becomes one of comparative knowledge--the knowledge of the defendant opposed to the knowledge of the person injured. To put the case in somewhat plainer and more familiar form, liability is established when it is shown that the peril, being of the defendant's creation, was known to the defendant but not to the person injured; and no liability is predicable of the injury when it appears that the injured person's knowledge of the danger surpassed or equaled that of the defendant."

Accordingly, "it has frequently been held that the right of the tenant to recover for such injuries may be barred by his negligent conduct in using the premises with knowledge of their unsafe and dangerous condition, since in such cases the tenant, in thus placing himself in a position of danger, assumes the risk of any injury caused thereby." 16 R.C.L., page 1061, sec. 581.

Numerous cases holding in accord with the text last above quoted from Ruling Case Law are cited in a note found in 34 L.R.A., N.S., page 808.

In 36 C.J., page 223, section 911, many cases are cited to support the statement in the text that, "The general rule is that where the tenant has knowledge of the defective condition of the premises and continues thereafter to occupy the same, he is considered to have assumed the risk, and in case of injury resulting from such defects he is held guilty of contributory negligence, and hence cannot recover."

And it has been so held in this State. Gilchrist v. Satterwhite, 7 Tenn.Civ.App. 321, 328; Louden v. Cline, 8 Tenn.Civ.App. 272, 276; Hamilton v. Moore, 14 Tenn.App. 584, 586; Pass v. Jones, 16 Tenn.App. 321, 324, 64 S.W.2d 511.

In Boyd v. McCarty, 142 Tenn. 670, 677, 222 S.W. 528, 530, the court said that the two cases of Hines v. Willcox, 96 Tenn. 148, 33 S.W. 914, 34 L.R.A. 824, 832, 54 Am.St.Rep. 823, and Willcox v. Hines, 100 Tenn. 524, 45 S.W. 781, 66 Am.St.Rep. 761,

"relate to defects of which the tenants are ignorant"; hence the Willcox-Hines cases (which are...