Thompson v. Franckus

• Decision Date: 12 August 1954
• Citation: 150 Me. 196,107 A.2d 485
• Parties: THOMPSON v. FRANCKUS (two cases).
• Court: Maine Supreme Court

Page 485

107 A.2d 485

150 Me. 196

THOMPSON v. FRANCKUS (two cases).

Supreme Judicial Court of Maine.

Aug. 12, 1954.

Frank M. Coffin, Portland, for plaintiff.

Powers & Powers, Lewiston, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER, BELIVEAU, and TAPLEY, JJ.

TIRRELL, Justice.

Plaintiffs, husband and wife, brought actions on the case for damages resulting from physical injuries to the wife caused by defendant's negligence. These actions were brought in the Superior Court, Androscoggin County, and tried before a jury at the September Term, 1953. At the end of the presentation of evidence, defendant requested certain instructions, which the Court refused to give, and to which refusal defendant excepted. The jury returned verdicts for both plaintiffs. This case is now before this Court on defendant's Bill of Exceptions and Motion for a New Trial.

The jury could have found from the testimony the facts to be as follows: At approximately seven-thirty in the evening of October 7, 1952 Mrs. Anna B. Thompson, plaintiff, visited Mrs. Rachel Rioux who lived at 22 Knox Street in the City of Lewiston, on the second floor of a four-story apartment house with the only means of ingress and egrees being a common stairway to all apartments. This apartment house was owned by Mrs. Mary C. Franckus, defendant. Mrs. Thompson visited Mrs. Rioux on this occasion for the purpose of having her hair dressed. Mrs. Thompson gained access to Mrs. Rioux's apartment by a stairway which was used in common by all tenants of the building. Mrs. Rioux was learning to be a hairdresser and had agreed with Mrs. Thompson to dress her hair so that she could get some experience.

At approximately eight-thirty that evening Mrs. Thompson left Mrs. Rioux's apartment and Mrs. Rioux accompanied her to the head of the stairway. Mrs. Thompson reached for a hand rail and found that there was none. There was no light burning on the first floor landing and the light on the second floor landing did not illuminate the stairway. At this point Mrs. Thompson paused while Mrs. Rioux started to return to her apartment in search of a match to aid Mrs. Thompson. While Mrs. Rioux was gone Mrs. Thompson found a matchbook in her pocketbook, lit a match, and then proceeded to descend the stairway. In taking a step, however, she tripped, and fell the length of the stairway. Testimony was presented to the jury as to the condition of the linoleum which was placed on the wooden tread of each stair. The jury could well have found from the testimony given that this linoleum covering on the treads was badly worn and contained holes of such nature as to create a hazard. The old linoleum coverings for the treads were not presented as exhibits but were described by a witness, namely Mrs. Rioux, the tenant, who removed them the day following the accident and replaced them with new rubber coverings.

As a result of this fall Mrs. Thompson was severely injured, and was hospitalized for approximately eight weeks. At the time of the trial she was still unable to perform her household duties and was unable to return to her work as a heel coverer for the Rock Maple Wood Heel Company.

The defendant requested in writing that the presiding Justice then instruct the jury as follows:

1. Visitor of tenant in building owned by the defendant has no greater rights in use of premises than has tenant, to whom the defendant owes no duty except to maintain passageway structurally in the same or similar condition as at date of letting, or as it appeared to be at the beginning of tenancy.

2. There is no common law duty on the part of landlord to light common passageways or stairways at night except by contract express or implied.

3. Under all conditions and circumstances, men must use reasonable care, and if they fail to use reasonable care, and are hurt on account of their failure, then they must bear their injuries themselves regardless of who else might have been responsible.

The Court refused to give these requested instructions and the defendant duly and seasonably excepted to the Court's refusal. Examination of the plaintiff's writ reveals in several places that part of the claimed negligence of the defendant was the failure to provide adequate lighting for the common halls and stairways. During the trial of the case much testimony was introduced by both the plaintiff and the defendant relative to the lighting facilities and adequacy of the lighting of such part of the premises as was retained and controlled by the defendant as common halls and stairways for the use of her tenants and others rightfully thereon.

The plaintiff introduced a city ordinance which provided for the lighting of common stairways and halls in buildings erected after the year 1936 and relied upon the violation of this ordinance as one of the causes of the accident. The presiding Justice, in his charge to the jury, instructed the jury that this ordinance did not apply to this particular case and the jury was instructed to disregard it. In examining the charge of the presiding Justice we fail to find any mention of whether or not the defendant owed any duty to her tenants, or to those rightfully on said premises, to furnish adequate lighting in the common hallways and stairways. The subject of lighting, outside of instructing the jury to disregard the particular ordinance, was never mentioned in the charge of the presiding Justice. The jury was given no rule of law as to what duty the landlord owned to the tenant, or to one rightfully on said premises, as to lighting, and therefore no rule of law could be applied by the jury to the facts as it found them to be.

The general rule is that the failure of the landlord to light common passageways resulting in personal injuries to the tenant or others does not render the landlord liable unless liability is imposed by the statute or contract. 52 C.J.S., Landlord and Tenant, § 417. Although this above is the general rule, such rule may vary, at least as to others rightfully upon said premises and not being tenants, if the landlord allows some dangerous condition to exist which is increased by the failure to light. This rule has been adopted in part, at least, as shown by cases cited under 25 A.L.R.2d 512, § 5. In particular we refer to Hawes v. Chase, 84 N.H. 170, 147 A. 748:

'* * * nothing a possible qualification of the rule that a landlord is under no duty to maintain lights in common passageways, where the need of lighting is due to a faulty plan or defective method of construction, but holding that negligence under this qualification of the rule was not available to the plaintiff where it was not presented at the trial.

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'But it was said in Carey v. Klein (1927) 259 Mass. 90, 155 N.E. 868, that, standing alone, the fact that the construction of the premises leaves halls and stairways unlighted does not place upon the landlord any obligation to light such common portions of the premises, since the tenant takes the premises as he finds them.

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'In an action for personal injuries allegedly caused by the landlord's negligent failure to light common ways over which he has retained control, it is ordinarily a question for the jury as to whether the premises in question are of such peculiar construction or defective condition as to impose upon the landlord the duty of supplying lights. Tauber v. Home Owners' Loan Corporation (1943) 267 App.Div. 766, 45 N.Y.S.2d 293.

'So, it has been held that the part of the premises retained in the landlord's control could be found to be of such construction or in such condition as to peculiarly require lights * * *' (Emphasis supplied.)

O'Neil v. Noe, 301 Ky. 472, 192 S.W.2d 366.

For the purpose of deciding this case it is preferable that the General Motion for a New Trial be first...