Tempel v. Proffitt

• Citation: 240 N.W. 285,122 Neb. 249
• Decision Date: 08 January 1932
• Docket Number: 27995
• Parties: EMMA TEMPEL, APPELLANT, v. JONAS F. PROFFITT ET AL., APPELLEES
• Court: Supreme Court of Nebraska

240 N.W. 285

122 Neb. 249

EMMA TEMPEL, APPELLANT, v. JONAS F. PROFFITT ET AL., APPELLEES

No. 27995

Supreme Court of Nebraska

January 8, 1932

APPEAL from the district court for Adams county: J. W. JAMES, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. The mere fact that one rightfully using a stairway, which it is the duty of the owner to keep in reasonable repair, is aware of a defective condition of the steps and is injured by reason thereof does not as a matter of law amount to such contributory negligence as to defeat a recovery, if it reasonably appears that he might safely use such steps with the exercise of due care.

2. Where the jury may rightfully infer from the evidence that the defendant was negligent and that the plaintiff was guilty of any negligence directly contributing to the injury complained of, it is the duty of the court to instruct the jury on the comparative negligence of the parties. Comp. St 1929, § 20-1151.

3. The burden is on the defendant to plead and prove contributory negligence of the plaintiff.

Appeal from District Court, Adams County; James, Judge.

Action by Emma Tempel against Jonas F. Proffitt and others. Judgment for the defendants, and the plaintiff appeals.

Reversed and cause remanded.

James D. Conway, for appellant.

Stiner & Boslaugh, Edmund P. Nuss and G. W. Bolin, contra.

Heard before GOSS, C. J., DEAN and EBERLY, JJ., and CHASE and HASTINGS, District Judges.

OPINION

GOSS, C. J.

This is an action for damages for personal injuries. Negligence is charged and contributory negligence of plaintiff was an issue. Verdict and judgment were for defendants. The jury were not instructed on the subject of comparative negligence. Comp. St. 1929, sec. 20-1151; Morrison v. Scotts Bluff County, 104 Neb. 254, 177 N.W. 158. They should have been instructed on that subject, unless the evidence of negligence of defendants was legally insufficient or unless the contributory negligence of plaintiff required a verdict for defendants. Day v. Metropolitan Utilities District, 115 Neb. 711, 214 N.W. 647; Traphagen v. Lincoln Traction Co., 110 Neb. 855, 195 N.W. 472; Baker v. Omaha & C. B. Street R. Co., 110 Neb. 246, 249, 193 N.W. 341; Casey v. Ford Motor Co., 108 Neb. 352, 187 N.W. 922; Francis v. Lincoln Traction Co., 106 Neb. 243, 183 N.W. 293; Robison v. Troy Laundry, 105 Neb. 267, 180 N.W. 43.

There was evidence to show that plaintiff, an employee of a tenant of defendant owners, on an errand for her employer, when injured, was using a stairway which was the only means of going to and from the second floor, where she was employed; it was the duty of the owners to keep the stairway in reasonable repair; some of the steps had been in a defective condition for some time and plaintiff was aware of that fact, but defendants were not; plaintiff was injured by reason of a defective condition of one of the steps. The evidence does not show affirmatively that the plaintiff was not exercising due care when she was injured, unless the mere fact that she was injured in the circumstances stated requires that conclusion.

Section 568, 16 R. C. L., 1049, says: "Even though it is the duty of a landlord to keep the portions of his premises under his control in reasonably safe condition, the right of the tenant to recover for injuries caused by defects thereon may be barred by reason of his contributory negligence. * * * It is generally held, however, that the mere fact that a tenant is aware of the defective condition of a portion of the premises which it is the duty of the landlord to repair does not as a matter of law make it contributory negligence to continue the use of the same, if it reasonably appears that he might safely do so with the exercise of care. Thus, the fall of a tenant in a tenement house, caused by a hole in a stair carpet, does not as matter of law show contributory negligence, although he knew of the holes in the carpet and the stairway was well lighted at the time." The duties and liabilities of a landlord to his tenants in such matters extend to an employee of a...