Walker v. Dante, 5465.

• Decision Date: 09 May 1932
• Docket Number: No. 5465.,5465.
• Parties: WALKER v. DANTE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 175, 58 F.2d 1076 (1932)

WALKER v. DANTE.

No. 5465.

Court of Appeals of the District of Columbia.

Argued April 8, 1932.

Decided May 9, 1932.

Rossa F. Downing and Joseph J. Malloy, both of Washington, D. C., for appellant.

Edmund L. Jones, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.

ROBB, Associate Justice.

Appeal from a judgment in the Supreme Court of the District on a directed verdict for the defendant at the close of plaintiff's evidence. The suit was to recover damages for personal injuries sustained on November 18, 1926, as the result of tripping and falling over a step or rise about one and one-half inches high, situated between show windows forming a public corridor or passageway to two stores on premises of appellee at 711 and 713 Thirteenth Street N. W.

At the trial it was admitted that a permit "to construct show windows and erect partitions upon premises 711-713 13th Street N. W.," was issued on September 21, 1926; and that William J. Dante, husband of the defendant, "was her duly authorized agent for the purpose of these repairs, alterations, and changes and for the management and control of the building for all purposes." Accompanying the permit was a plan or sketch of the proposed alterations, which by agreement of counsel was admitted in evidence for the purpose of demonstrating to the jury "what the conditions were in regard to the entrances to 711-713 13th Street, Northwest." Regarding those conditions, the record is as follows: "During the course of the trial by and with the consent of the counsel for the defendant this plat was shown to the jury and explained by counsel for the plaintiff. The location of the step on the sketch was pointed out to the jury. In this explanation it was stated that the step over which it is claimed plaintiff tripped and fell was located three feet, two inches inside a passageway formed by show windows extending from the public sidewalk to the entrances to 711-713 13th Street, Northwest, a distance of approximately ten feet from side-walk to the store entrances. It was also agreed that before the remodeling, the step in question was at the building line as it is at the present time, and the whole first floor was occupied by the Sanitary Grocery Company as one store, the threshold or entrance to the store being at this step. In the remodeling a partition was run backward dividing the floor into two approximately equal sections for stores, and entrances to these stores, 711 to the right and 713 to the left, were moved back from the step and building line a distance of about six feet and a corridor or hallway was formed by show windows added to the building, said corridor then extending three feet, two inches from the step to the pavement and six feet backward from the step to the entrances." The plat also discloses that the floor of the corridor from the sidewalk to the step was panelled, thereby presenting a different appearance from the adjoining sidewalk.

Plaintiff testified that on the day of the accident she was walking down Thirteenth street and saw some brass objects in the window of the International Brass Shop at 713 Thirteenth street. She started to go in, "caught her foot on a ledge, about an inch or an inch and a half, and fell the whole length of her body face down — glasses went one way, umbrella went the other, and she hit her head on the door jamb of 713. There are two doorways there, double doorways." On cross-examination the witness stated that she "started up the walk between these two glass show windows, and she was still looking at the objects. She just simply made an effort to walk in the door. She didn't look for this step at all." In answer to the question: "Did you look down where you were walking? Did you pay any attention to where you were walking at all?" witness replied: "Of course I did. I turned around and just like anyone would walk along the place, thinking it just a plain sidewalk." In answer to the further question: "Did you look down to see if this walkway, this hallway you might call it, was on the same level; did you pay any attention to it at all?" witness answered: "It was so slight." Again she was asked: "You just didn't look; you just walked in there, tripped and fell. That is right, isn't it? Is that right?" She replied: "As close as I could say."

It is settled law that an owner who retains control of a portion of premises or leases different parts of premises to different tenants with a common use of steps or landings, passageways, and the like, is under a duty to use reasonable care to maintain such places and appurtenances in a reasonably safe condition for the purposes intended. Security Savings & Commercial Bank v. Sullivan, 49 App. D. C. 119, 261 F. 461; Wardman v. Hanlon, 52 App. D. C. 14, 280 F. 988, 26 A. L. R. 1249; Altemus v. Talmadge, ___ App. D. C. ___, 58 F.(2d) 874, decided April 18, 1932; Bloomer v. Snellenburg, 221 Pa. 25, 69 A. 1124, 21 L. R. A. (N. S.) 464.

In the present case the defendant retained exclusive control of the...