Wellman v. Christian

• Decision Date: 03 July 1962
• Docket Number: No. 12140,12140
• Citation: 126 S.E.2d 375,147 W.Va. 189
• Court: West Virginia Supreme Court
• Parties: Hattie WELLMAN v. F. H. CHRISTIAN.

Page 375

126 S.E.2d 375

147 W.Va. 189

Hattie WELLMAN v. F. H. CHRISTIAN.

No. 12140.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1962.

Decided July 3, 1962.

Syllabus by the Court.

Where, in an action to recover damages for personal injuries sustained on the premises of another, the effective of the jury's verdict is to find that the plaintiff was a bare licensee, and that there was no breach of the duty owing to a licensee by the defendant landowner, error in the giving of an instruction, in behalf of the defendant, which improperly defines contributory negligence is harmless.

Greene, Morgan & Ketchum, Claude M. Morgan, Chad W. Ketchum, Huntington, for appellant.

Campbell, McNeer, Woods & Bagley, R. G. McNeer, C. F. Bagley, Huntington, for appellee.

BROWNING, Judge.

In this civil action, plaintiff, Hattie Wellman, seeks to recover damages for personal injuries received on August 21, 1960, when she fell down the basement stairs in the home of the defendant, F. H. Christian.

The stairs involved go down three steps to a landing then descend 6 to 8 steps to the basement floor. They are described by the defendant as being a 'little bit' steep, 'not of the slope as they would be upstairs in the house.' They were covered by rubber treads which were nailed or tacked beneath the leading edge of the steps, folded back flat across the top and again tacked at the rear of the steps. Defendant had washed down the stairs sometime prior to August 21, 1960, and, to facilitate mopping, had removed the nails or tacks fastening the rear of the treads. Defendant is the former husband of plaintiff's daughter and during the marriage plaintiff had resided in the defendant's home for 5 or 6 years, during which time plaintiff, on various occasions, had used the basement stairs. Some jars used for canning purposes were stored in the basement and, upon the divorce, defendant allowed plaintiff's daughter to keep them there with the understanding that she, the daughter, could have them at any time.

It was stipulated 'that the defendant's former wife had left some jars in the basement, and the plaintiff was returning to the basement to remove the fruit jars and that she had procured the permission to do so from the defendant with the intention of using the fruit jars for some canning purposes in her own home.' Defendant accompanied her and preceded her down the stairs. Defendant, though he did not see plaintiff's fall, testified that she slipped on one of the treads and also stated that he did not tell her that he had unfastened the rear of the treads. Plaintiff testified that she had a basket in which to get the jars and was going down the stairs, '* * * And I got down so far and I stepped off the one step onto the other, and they had rubber treads on them. And I thought they were tacked, but he had--Forrest had took them loose to clean the steps. And when I stepped on that one down where I fell, why, it just slid, slid out, and then went over off on the step. And I don't know if I slid over any more than one step or not. I couldn't say that for sure. But I know I slid over one and then I hit, I went down, you know, when I slid. That is when I broke my leg. * * *' Plaintiff is a woman in her seventies, had suffered paralysis of the left side of her face and, at the time of the injury 'had had hypertension cardiovascular disease.'

Upon the trial of the case the jury found for the defendant and judgment was entered thereon. A motion to set aside the judgment and award plaintiff a new trial was overruled and, upon plaintiff's application, this Court granted an appeal on October 23, 1961. Errors assigned in this Court are, in substance: (1) That the verdict is contrary to the law and the evidence; (2) That there is no evidence that plaintiff was guilty of contributory negligence; and (3) the giving of defendant's instructions Nos. 3 and 4.

Defendant's instruction No. 3 is as follows: 'The Court instructs the jury that if you find from the evidence in this case that the plaintiff, Hattie Wellman, was guilty of any negligence, no matter how slight, which contributed to the accident which resulted in injury to her, then she is not entitled to recover and it is your duty to return a verdict for the defendant, F. H. Christian.' This instruction was objected to on the ground that 'The word 'proximately' contributed must be in there, not just contributed'. Defendant's instruction No. 4 provides: 'The Court instructs the jury that the law imposes upon the plaintiff the duty of exercising reasonable care for her own safety, and if you find from the evidence in this case that the plaintiff, Hattie Wellman, failed to exercise such reasonable care for her own safety and such failure contributed proximately to the injury of which she complains, then it is your duty to return a verdict for the defendant, F. H. Christian.' No objection was made to the giving of this instruction at the time, however, in argument and brief, plaintiff's counsel assert that it, and No. 3, are erroneous for the reason that there was no evidence of any negligence on the part of the plaintiff on which to base the instructions, and that No. 3 is erroneous for the additional reason, assigned at the trial, that it omits the word 'proximately' or its equivalent. Instructions Nos. 1 and 2, given at the request of plaintiff, both negative contributory negligence.

In the pretrial order, to which there was no objection by counsel for either party, it was provided: 'Was the plaintiff herself negligent which contributed to the injuries which she sustained?' Plaintiff's instruction No. 2, which was given over the objection of counsel for the defendant, informed the jury that they should return a verdict for the plaintiff if they believed the defendant failed to use ordinary care to prevent injuring her, 'unless you further believe that she was guilty of negligence proximately contributing to her own injuries * * *' The same language is contained in plaintiff's instruction No. 1, to-wit: '* * * unless you further believe that she was guilty of negligence proximately contributing to her own injuries * * *'

This is the single syllabus point in Dangerfield v. Akers, 127 W.Va. 409, 33 S.E.2d 140:

'Where in the trial of an action at law before a jury the plaintiff and defendant each ask for, and the trial court gives, instructions based on the supposed existence of evidence on a single point in the case, when in fact there is no evidence on which such instructions could properly be given, the error is one invited by the litigants, and neither can take advantage thereof in this Court. And where such case involves conflicting testimony and circumstances, as to matters of fact, and the case has been fairly tried, and the jury otherwise property instructed, the verdict of the jury should not be set aside unless plainly contrary to the weight of the evidence, or without any evidence to support it.'

In the opinion the Court, after citing authority therefor, stated:

'We think the same principle applies to a case where there being no evidence on which to base instructions, instructions were given at the instance of both parties on the assumption that there was such evidence.

'But counsel for plaintiff, in...