Thompson v. Frankus

• Decision Date: 15 June 1955
• Parties: Clifton THOMPSON v. Mary C. FRANKUS. Anna B. THOMPSON v. Mary C. FRANKUS.
• Court: Maine Supreme Court

Page 718

115 A.2d 718

151 Me. 54

Clifton THOMPSON v. Mary C. FRANKUS.

Anna B. THOMPSON v. Mary C. FRANKUS.

Supreme Judicial Court of Maine.

June 15, 1955.

Frank M. Coffin, Lewiston, for plaintiffs.

Powers & Powers, Lewiston, for defendants.

Before WEBBER, BELIVEAU and TAPLEY, JJ.

WEBBER, Justice.

In these two cases, considered together for convenience, husband and wife seek damages for injuries to the wife. These same cases were before us on a general motion for new trial after plaintiffs' verdicts in Thompson v. Franckus, 150 Me. 196, 107 A.2d 485. In granting new trial we did so solely upon the ground that no instructions whatever were given the jury as to the duty of a landlord to light common stairways within his control. We neither held nor intimated that there was not sufficient evidence favorable to the plaintiffs to warrant submission to the jury under adequate instructions. Upon the retrial, the evidence presented differed not materially from that which appeared in the first record. Nevertheless at the close of the evidence the presiding Justice directed verdicts for the defendant and plaintiffs' exceptions bring the matter before us for the second time.

The facts were fully stated in our prior opinion. Briefly stated, the evidence now before us, viewed in the light most favorable to plaintiffs, would have justified jury findings that the plaintiff wife was injured while attempting to descend an unlighted stairway controlled by the defendant landlord and maintained for the common use of her tenants; that this plaintiff was an invitee of a tenant; that the linoleum stair covering was badly torn, loose and full of holes, which condition was known to the defendant; that the plaintiff lighted a match before stepping from a stair covered with the defective linoleum and stumbled or tripped and fell to the foot of the stairway; and that there was no other means of egress available to the plaintiff who sought to leave the premises to return to her home. Both plaintiffs showed resulting damages.

It is almost universally held that a landlord who has retained control of common stairways owes to his tenants and their invitees the duty of exercising ordinary care to keep such stairways reasonably safe for their intended use. 32 Am.Jur. 561, sec. 688 (Note 9 and cases cited); Sawyer v. McGillicuddy, 81 Me. 318, 17 A. 124, 3 L.R.A. 458; Austin v. Baker, 112 Me. 267, 91 A. 1005, L.R.A.1916F, 1130; Toole v. Beckett, 67 Me. 544; Miller v. Hooper, 119 Me. 527, 112 A. 256; Robinson v. Leighton, 122 Me. 309, 119 A. 809, 30 A.L.R. 1386; and Smith v. Preston, 104 Me. 156, 71 A. 653. 'The opinion in Smith v. Preston, supra, states the rule of liability thus: 'In all the cases the criterion of liability is the obligation to maintain and repair with the right of control for that purpose.'' Jacobson v. Leaventhal, 128 Me. 424, at page 426, 148 A. 281, at page 282, 68 A.L.R. 1192.

In Massachusetts, the duty is limited to maintaining the premises in as good condition as they were or appeared to be in at the inception of the tenancy. 32 Am.Jur. 572, sec. 696. Cases assembled in the footnote include Rosenberg v. Chapman National Bank, 126 Me. 403, 139 A. 82, 58 A.L.R. 1405. It is thereby suggested that Maine has adopted the minority doctrine of Massachusetts. The holdings of the Rosenberg case go no further than its facts. The case holds that in the absence of contract or agreement, the landlord owes no duty to tenants to remove natural accumulations of snow and ice from outside common stairways. It further holds that no duty is owed to tenants to make the structural design or plan any more safe than it was at the time of letting. Specifically, the structural plan having included no gutter over the stairway at the inception of tenancy, the tenants could not demand that one be added during the tenancy. The distinction, however, was clearly made in Miller v. Hooper, supra, 119 Me. at page 529, 112 A. at page 257: 'As applied to the plan of construction, this position is sound. An owner may build a tenement house with stairways which because of steepness or for other obvious structural reasons are inconvenient or even unsafe. The tenant cannot exact any change. If such stairways need to be repaired or rebuilt, the owner is not required to make them safer or more convenient. But the application of this doctrine to repairs made necessary by wear, breaking, or decay is opposed to the great weight of authority. We conceive the true rule to be that the owner must exercise due care to keep in reasonably safe repair stairways and passage ways which remain under his own control.' (Emphasis supplied.) A like duty was of course owed by the landlord to the tenants' invitees.

There is evidence in the record before us upon which the jury could have found that the defendant had negligently failed to repair the worn and torn linoleum stair covering which had become dangerously defective by reason of 'wear, breaking or decay'. The evidence would have further supported a jury finding that the dangerous condition thus created by the negligence of the landlord was so enhanced and aggravated by a complete absence of lighting as to give rise to a further duty owed by the defendant to the tenant's invitees to light the stairway. Thompson v. Franckus, supra. The defendant's negligence, or lack of it, was therefore a jury question upon this evidence.

Likewise the issue of the contributory negligence of plaintiff wife was a jury question. She was under some urgency to return home. No other means of egress was available. She lighted a match which enabled her to look where she was going before taking the step which resulted in her fall. She did not wait for the tenant to bring a light. She proceeded over an unlighted stairway. It is for the jury to say whether she used that care and caution which an ordinarily prudent person would have exercised under the same circumstances and having the same urgency to leave the premises. We cannot say that she was guilty of contributory negligence as a matter of law. Our Court has frequently recognized that 'urgency' is a factor which may be considered in appraising the care exercised by a party. In Rosenberg v. Chapman National Bank, supra, 126 Me. at page 408, 139 A. at page 84, it was said: 'Under some circumstances of emergency or urgency, a model of prudence and care might knowingly use or attempt to use a stairway negligently made or left very slippery. But the evidence in this case discloses no emergency and no urgency.' Again in Temple v. Congress Square Garage, Inc., 145 Me. 274, at page 277, 75 A.2d 459, at page 461, we said: 'No urgency existed so far as the record discloses that compelled her (plaintiff invitee) to proceed from the elevator to the friend's room.' See also Agosta v. Granite City Real Estate Co., 116 Vt. 526, 80 A.2d 534, at page 536, wherein emphasis was placed on the fact that 'the plaintiff necessarily had to return home and had no alternative but to proceed.' Bailey v. Fortugno, 151 A. 484, 8 N.J.Misc. 739.

The defendant contends that there is no evidence upon which the jury could have found that any negligence of hers was the proximate cause of the plaintiff's fall. Plaintiffs' counsel suggests that in directing a verdict for defendant the presiding Justice below was persuaded to that action by the failure of the plaintiff wife to state specifically what caused her to stumble as, for example, that she slipped on loose linoleum or caught her foot on torn linoleum or in a hole in the stair covering. The record is silent as to the reasons which weighed in the mind of the Justice below. However, defendant's counsel contend that 'if the plaintiff, who knew and could see what she was doing, cannot tell the jury what caused her to fall, how can a jury answer this question without speculation, conjecture or guessing?' The fallacy of this argument is readily apparent. A plaintiff may under many circumstances be completely unable to remember or recount or explain an accident, but may nevertheless recover if the...