Wool v. Larner

• Decision Date: 05 May 1942
• Docket Number: No. 389.,389.
• Citation: 26 A.2d 89
• Court: Vermont Supreme Court
• Parties: WOOL v. LARNER et al.

26 A.2d 89

WOOL

v. LARNER et al.

No. 389.

Supreme Court of Vermont. Chittenden.

May 5, 1942.

Exceptions from Chittenden County Court; Charles B. Adams, Judge.

Action by Erna T. Wool against Arthur L. Larner, Anna K. Larner and William E. McBride, to recover for injuries allegedly sustained by plaintiff in fall into hole on defendants' premises. The trial court granted defendants' motion for directed verdict at the close of plaintiff's case, and the plaintiff brings exceptions.

Judgment affirmed as to William E. McBride, and judgment reversed as to Arthur L. Larner and Anna K. Larner, and cause remanded.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Robert M. Rosenberg, A. Pearley Feen, and Louis Lisman, all of Burlington, for plaintiff.

M. G. Leary, M. G. Leary, Jr., and Bernard J. Lcddy, all of Burlington, for defendants.

STURTEVANT, Justice.

In this action the plaintiff, Erna T. Wool, seeks to recover for injuries alleged to have resulted to her solely from the defendants' negligence. The plaintiff claims to have received these injuries when, without fault on her part, she fell into a so-called coal hole upon premises of the defendants, Arthur L. Larner, Anna K. Larner and William E. McBride.

At the close of the plaintiff's case the defendants moved for a directed verdict in their favor upon grounds which may be summarized as follows:

1. The evidence viewed in the light most favorable to the plaintiff fails to show any actionable negligence by the defendants or that they failed in the performance of any duty owed to the plaintiff.

2. The plaintiff assumed the risk.

3. The plaintiff was guilty of contributory negligence as a matter of law.

The court denied the motion upon the grounds as stated in numbers 2 and 3 and ruled that as to each of these there was a question for the jury. However the court granted the motion upon the grounds stated in number 1 and the plaintiff brings the case here upon exceptions saved to this action of the court. In her brief the plaintiff claims nothing from her exceptions as applied to the defendant McBride and states that the word "defendants" as therein used refers only to the defendants Larner and therefore we so limit the meaning of that term herein unless otherwise indicated.

There was little or no dispute as to the material facts shown by the evidence. Viewed in the light most favorable to the plaintiff the jury could reasonably have found the following facts.

The defendants own two adjoining pieces of real estate known as numbers 155 and 157 located on the southerly side of Cherry street in the city of Burlington. They rented the building at No. 155 to one McBride who occupies the first floor front as a store and sub-lets the tenement up stairs to one McNalley. The building at No. 157 contains two tenements and these are rented to other tenants. There is a driveway about ten feet wide between the two buildings which was not included in any of the leases but is kept in the control of the defendants. When McBride first rented the building at No. 155 the tenement upstairs could be reached by either going southerly from Cherry street along the driveway to a door toward the rear of the building thence into a hallway from which a flight of stairs leads to the apartment, or entrance to the hallway might be had through the store. Soon after McBride rented the building he exercised his right to close the store entrance to the hallway so that at all times here material the only entrance to the McNalley apartment was southerly from Cherry street along the driveway to the above mentioned door toward the rear of the building.

This driveway was used by other tenants to some extent as a parking place for cars and for other purposes and it was also used as a way of access to other buildings located southerly of those before mentioned. The defendants intended that this driveway should be used by the tenants of both buildings.

After acquiring these two properties the defendants put a cement surface on the driveway and at the same time built in two coal holes, one for use in connection with each of the buildings. The hole in the westerly side of the driveway was adjacent to a cellar window in the easterly wall of the building at No. 155 and was about 20 feet southerly from the northeast corner of the wall. This hole extends easterly from the wall into the driveway 1 foot 2 inches, is about 2 1/2 feet long from north to south and about 2 feet 2 inches deep. A similar hole is located nearly opposite this one adjacent to the wall on the westerly side of the building at No. 157 and the distance between the two holes measured on the surface of the driveway is about 7 1/2 feet. The only guard about the holes is a border two or three inches high and about 4 inches wide.

On the evening of May 15, 1937, the plaintiff and one of her friends, a Mrs. Allen, attended an entertainment at a public hall in the city. It had been arranged that Mrs. Allen's husband would call for them and drive them home in his car after he finished work which was shortly after twelve o'clock, midnight. Mrs. McNalley and her mother met the other ladies at the entertainment, learned their plans for going home and as the entertainment was to be over before eleven P. M., Mrs. McNalley invited the plaintiff and Mrs. Allen to come to her apartment and wait there for Mr. Allen. It was also planned that Mr. Allen would take Mrs. McNalley's mother to a place where she wished to go in the vicinity of the Allen home.

Mrs. McNalley and her mother left the hall first and about ten minutes later the plaintiff and Mrs. Allen left for the McNalley apartment. They reached No. 155 Cherry street at about eleven P. M. The entrance was dark and the plaintiff was not familiar with it. She turned into the driveway close to the building and felt her way along to be sure where she was going "—walked along a little ways and—just fell stumbled or something into this hole," meaning the so-called coal hole adjacent to the easterly wall of the building at No. 155. This suit is brought to recover for injuries alleged to have been received in that fall.

In Coburn v. Village of Swanton, 95 Vt. 320, at page 326, 115 A. 153 at page 156, in considering the duty owed by the owner of certain premises to one there for the purpose of taking food to the owner's workman this Court stated: "From what has been said, it is evident that invitation in the technical sense, from which the duty of active care arises, differs from invitation in the ordinary sense, implying the relation of host and guest, or a mere licensee."

In order to avoid confusion in the use of the terms "invitee" and "invitee in the technical sense" in this opinion we adopt the...