Lake v. Emigh

MR. JUSTICE CHOATE delivered the opinion of the court. This is an appeal from a judgment for damages for personal injuries. In considering it the history of the ease becomes material. The case was tried in the district court of Silver Bow county in May 1944, resulting in a judgment for plaintiff in the amount of $8,000 from which defendant appealed (Lake v. Emigh, Mont. 167 Pac. (2d) 575). Upon that appeal the judgment was reversed and the cause remanded for a new trial. The second trial resulted in a verdict and judgment for plaintiff in the amount of $6,000. This judgment is now before us for review-on defendant’s appeal therefrom. There is little material difference in the facts established on the first and second trials of the ease, thus making applicable the rule of the law of the case (Eliason v. Geil, 116 Mont. 434, 154 Pac. (2d) 277) and, unless otherwise indicated, the facts commented upon in this opinion are those which appear in the transcript before us on the present appeal. Likewise, plaintiff did not amend her complaint following the reversal of the first judgment. Consequently the issues of fact are identical with those considered on the first appeal except as to the issue of contributory negligence in the use of the ladder which was modified in our former opinion. One Eli Virta was the owner of.three houses on the corner of Lee Avenue and Broadway in Butte. One of these houses faced north on Broadway and was designated as 476 Broadway. The other two houses were duplex dwelling houses facing east on Lee Avenue, which runs north and south. The southernmost of the two duplexes was on the corner of Lee Avenue and an alley that paralleled Broadway. The south apartment of this duplex *90 was No. 21 and the north apartment was No. 23. There was a small passageway between the southern and the northern duplex and the second house also consisted of two apartments numbered 25 and 27. So that there were four apartments, two in each house, numbered from the alley to Broadway as No. 21, 23, 25, and 27 respectively. The southernmost duplex was occupied by Mrs. Tikkanen in No. 21 and the plaintiff lived in No. 23. Across the passageway in No. 25 lived Mrs. Branson and her mother, Mrs. Kauhanen, and No. 27 was occupied by one Kauppola. In May 1935 the plaintiff and her husband rented the apartment at No: 23 Lee Avenue from Mr. Virta’s agent, Mrs. Magda Syren. In the back yard to the rear of the two duplexes were three clotheslines. One was attached to the rear of apartment No. 23 and ran diagonally in a southwesterly direction across the yard to a telephone pole on the alley. The second line was attached to the rear of apartment No. 25 and was fastened to the same telephone pole. A short line was attached to the rear of apartment No. 21. The clothesline at No. 25 consisted of a rope running over pulleys at either end. A small platform .was provided to place clothes baskets etc. at the end nearest the house. The record does not reveal the height of the line at the house but the evidence is that it had to be reached by a ladder six or seven feet in height. This ladder was constructed of 2 x 4 uprights with .1x4 steps. The top of the ladder was nailed to a 2 x 4 affixed to a traditional brick edifice euphemistically called a lavatory. At the top of the ladder was a board eight inches wide and 20 inches long upon which the person using the clothesline could stand while hanging out clothes. On November 25, 1935, while the plaintiff was hanging clothes on the line affixed to the rear of No. 25 Lee Avenue, the clothesline broke and she fell a distance of six or seven feet to the ground and suffered the injuries of which she is complaining. Two grounds of negligence were alleged in the complaint. First, that the defendant and his agents permitted the clothes *91 line to become weak and rotten and not in a reasonably safe condition for the use for wbicb it was intended. Second, that defendant permitted, tbe step-ladder by means of which access was had to the clothesline to become loose from its fastenings against the outbuilding and to become unsteady and not in a reasonably safe condition for use. Defendant pleaded contributory negligence of plaintiff as the sole cause of her injuries. On the former appeal of this case (Lake v. Emigh, supra) we held that so far as the use of the clothesline was concerned the plaintiff was not guilty of contributory negligence simply because she knew the line was old and worn since she had no means of knowing the extent of its decay or that it was not strong enough to withstand ordinary use for its intended purpose. We further held that as to the ladder the plaintiff must be held as a matter of law to have known of its shaky condition and to have appreciated the danger arising from that condition; that therefore plaintiff was guilty of contributory negligence in using the ladder in its shaky condition and had assumed the risk incident to its use. The case was therefore sent back for a new trial at which we directed that the defective condition of the ladder should be eliminated. Law of the present ease. The decision on the former appeal has become the law of this case as to all matters which were directly involved, in and considered and determined on said appeal. See Finlen v. Heinze, 32 Mont. 354, 366, 80 Pac. 918, and cases cited therein. Also Anderson v. Border, 87 Mont. 4, 8, 285 Pac. 174, 176, in which we said : * * as to all points which were directly involved in, and were passed upon, in the former appeal, and which are involved in this ease, whether the opinion is right or wrong, it is the law of the ease, was binding upon the trial court, and is binding upon us. ’ ’ Citing Carlson v. Northern Pac. Ry. Co., 86 Mont. 78, 281 Pac. 913, in which a long array of Montana eases supporting the above rule are cited. We will now consider the contentions advanced by defendant. First, the theory of plaintiff’s case was that the use of the defective instrumentalities, including both the ladder and *92 the clothesline was the proximate cause of plaintiff’s injuries- and that since on the first appeal the issue as to the defective condition of the ladder was eliminated from consideration it is “beyond human power to say” that the breaking of the clothesline alone was the cause of plaintiff’s injuries. We are unable to agree with this contention. As we view the record there is evidence which if believed by the jury warranted a verdict for plaintiff on the theory that her injuries resulted from the defective condition of the clothesline and not from the shaky condition of the ladder. The fact should not be lost sight of in this case that however “shaky” the ladder or its platform, it did not collapse nor give way either before or after plaintiff fell from it. Plaintiff’s husband, William Lake, testified that-his wife “was hanging out clothes and the clothesline broke and she fell down from that platform, right down to the boardwalk. ’ ’ Mr. Lake witnessed the accident. Looking through the door window he saw the clothes fall “down on the ground.” Witness then went out to see what had happened to his wife and he “saw her shaking at the top of the step ladder,” and also saw the platform “shaking just a little bit” and in just a second or two plaintiff fell back to the sidewalk. From the above testimony the jury might well have found that the defective ladder which only “shook a little bit” had nothing to do with plaintiff’s fall but that plaintiff was precipitated to the ground as the sole result of losing her balance when the defective clothesline broke. Plaintiff herself testified that the rope broke as she was hanging up the clothes; that she had hold of the line and was pushing it forward and that when the line broke she “lost her balance and fell from there.” To the same effect was the plaintiff’s testimony on cross-examination. She said “I lost my balance because the rope broke and there was no place to take hold and that platform was narrow.” Second, that the breaking of the clothesline was not the proximate cause of plaintiff’s injuries because of intervening causes, including the narrow platform, lack of any handhold, and the shaking of the ladder, all of which it is claimed broke *93 the sequence of events and were new and independent causes of plaintiff’s injuries. If the lack of a handhold, the narrowness of .the platform and the “shaky” condition of the ladder were contributing' causes to plaintiff’s injuries, it is sufficient to say that defendant was responsible for all of said causes and it is immaterial which of them was the proximate cause of plaintiff’s injuries. 45 C. J. section 487, page 924, states the law as follows: “Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes, and recovery may be had against either or all of the responsible persons, although one of them was more culpable, and the duty owed by them to the injured person was not the same. Where the injury results from two or more causes for all of which defendant is liable, it is immaterial which was the proximate cause.” Citing authorities in the accompanying case notes. Also if it be assumed that the narrow platform, the lack of a handhold and the shaky condition of the ladder were intervening causes of the plaintiff’s injuries we do not regard them as sufficient to break the sequences of events. The entire circumstance of plaintiff’s fall occupied only a few seconds and if what happened in those few seconds can be broken down into .separate concurrent causes, still that will not nullify defendant’s liability for the décedent’s negligence. In 45 C. J. 926, section 489, the law is stated as follows: “It is well settled that the mere fact that other causes, conditions, or agencies have intervened between defendant’s negligence and the injury for which recovery is sought is not sufficient in law to relieve defendant from liability. ’ ’ Citing numerous authorities in the accompanying case note No. 27. Third, that the use of the defective clothesline cannot be severed from the use of the remaining defective facilities. This contention was decided adversely to defendant’s position on the first appeal of this case when we directed the removal of the issue of the defective condition of the ladder from the considera *94 tion of the jury. Also as we have pointed out in the present opinion, it is by no means impossible. On the contrary it was both feasible and warranted by the evidence for the jury to find that the breaking- of the defective clothesline was the sole proximate cause of plaintiff’s injuries. We are of course aware that a different conclusion may readily be reached but our point is that there was sufficient evidence to warrant the conclusion reached by the jury as disclosed by the verdict. Fourth, that Virta, the landlord retained no control over the clothesline; that defendant was one of several tenants in common and that under such circumstances the landlord is not liable for injuries for a defect in the premises. The record shows that the clotheslines were reserved by the landlord for the common use of all the tenants. The record discloses that there was no clothesline entirely upon premises rented exclusively to any one tenant. There is direct and uncontradicted testimony that the plaintiff’s agent expressly reserved all of the clotheslines for the common use of all four of the tenants. This evidence appears in the transcript on both the first and second trials. William Lake, for example, testified as follows: “Q. When you went to rent these premises, your apartment, was anything pointed out to you as the place to hang the family wash or laundry! A. Yes. Mrs. Syren opened up the door and showed the north line and the south line and told us we could use either one that is not in use.” Again the same witness testified: “Now while you were living in the apartment that jmu told the jury about did the people that lived in those apartments use those lines every wash day hanging clothes! A. All those apartments they used either line that came empty; and they had clothes enough for two lines they used them too.” To the same effect was plaintiff’s testimony that when they rented the property at 25 Lee Avenue certain parts of the premises were used in common with the other tenants, namely, the “parts where we hung the clothes” and that she and the other tenants used the same clothesline. *95 Mere common user does not create a tenancy in common but where there is a reservation by the landlord of a part of the leased property for the common use of the different tenants, we stated the law as follows on the former appeal [167 Pac. (2d) 578] : ‘ ‘ The rule is well established that where the owner of premises leases parts thereof to different tenants, reserving other parts for the common use of the different tenants, it is his duty to use reasonable care to keep the parts reserved for common use reasonably safe. 32 Am. Jur., ‘Landlord and Tenant,’ sec. 688; 2 Restatement, Torts, sec. 360. “This rule includes appliances for hanging clothes when used in common bjr the several tenants. Tracey v. Page, 201 Mass. 62, 87 N. E. 491; Sizse v. Wegmann, 169 App. Div. 112, 154 N. Y. S. 825; Hanselman v. Broad, 113 App. Div. 447, 99 N. Y. S. 404; 36 C. J. 217, note 23.” The law in this respect is also stated in 52 C. J. S., Landlord and Tenant, sec. 417, as follows: “As a general rule the landlord is liable for personal injuries sustained by reason of his failure to keep the portions of the premises reserved for common use in a reasonably safe condition * * *. ’ ’ “Under the general rule * * * where several tenants have a right to use a common yard, as appurtenant to the premises rented to them * * * the landlord will be liable for any injuries sustained by them owing to a defect in the common premises * * * ” (52 C. J. S. 38.) The rules stated above are applied by the author to clotheslines in 52 C. J. S., page 41. We do not controvert the general rule stressed in the dissenting opinion that a landlord owes no legal duty to maintain leased premises in a suitable state of repair. However, so far as the clothesline involved in this case is concerned, it was reserved for the common use of all the tenants and was therefore not within the rule stated in the dissenting opinion. Instructions. We will now consider the instructions given and those refused by the trial court, having in mind our direc *96 tion to the lower court to eliminate the defective condition of the ladder from consideration by the jury. Instructions 1 to 14 inclusive were given without objection. Instruction No. 15 offered by the plaintiff and modified by the court related to the duty of the landlord to keep the clothesline in a reasonably safe condition for use and, we think, correctly stated the law. The defects which existed in the clothesline were not, under the evidence, patent defects either at the time plaintiff’s husband rented the premises or on the date of plaintiff’s injury. It was of course readily apparent that the rope was weather-beaten. It was not, however, apparent to what extent the line had been weakened nor whether it would withstand the strain which might be placed on it in the ordinary use for which it was intended. Instruction No. 16. For the same reason, namely, that the defects existing in the facility did not appear at the time the premises were rented, we think this instruction was properly given. Instruction No. 18. This instruction was in accord with our direction to the trial court to remove entirely from the consideration of the jury the question of plaintiff’s negligence as to the use of the ladder upon which question this court held that plaintiff was guilty of contributory negligence. The instruction in effect sent the case to the jury to decide whether the breaking of the clothesline and the shaking of the ladder concurred as a proximate cause of plaintiff’s fall from the ladder and whether, without the breaking of the clothesline, the plaintiff would have fallen. If the jury found that these two did concur in causing plaintiff to fall from the ladder and that without the breaking of the clothesline plaintiff would not have fallen, then the jury were told to return a verdict for the plaintiff if they believed that plaintiff was free from contributory negligence or assumption of risk of injury on her part. We think this instruction read as it must be as a part of the entire instructions given, and particularly instructions 1A and 4A inclusive, correctly stated the law of the case. *97 Instructions 1A and 5A. We do not find that the objections urged against these instructions have substantial merit. Defendant’s requested instruction 8A was also properly refused. The issue as to plaintiff’s contributory negligence, if any, in using the defective ladder had been removed entirely from the consideration of the jury. (Instruction No. 18 given in accordance with the holding of this court on the first appeal.) The offered instruction was in effect an invitation to the jury to consider plaintiff’s negligence if any in using the ladder in its defective condition. This instruction was contrary to the instruction above noted as well as to the determination of this court. We have considered appellant’s objections to instructions 17, 1A and 5A given by the court and also his objections to the refusal of the court to give his requested instructions Nos. 7A and 9A and find them without merit. In our opinion the able trial judge properly tried the case and correctly instructed the jury in accordance with our previous opinion. In view of the conclusions expressed herein, and finding no error, the judgment of the lower court is affirmed. On motion for rehearing the opinion promulgated herein on the 6th day of Decmber 1947, is withdrawn and this opinion substituted therefor. Associate Justices Angstman and Metcalf concur. Mr. Justice Gibson not participating.