Opinion
No. 3924.
Decided August 11, 1950.
Certain evidence justified the finding that a stairway which led to the plaintiff's third floor apartment was retained under the control of the landlord for the benefit of the plaintiff and other tenants as an emergency exit and that the landlord was under a duty to keep it in reasonable repair. Evidence of the emergency use of a stairway leading to the plaintiff's third floor apartment by other tenants was competent upon the issue of whether the landlord retained control.
CASE, by a tenant to recover for personal injuries received when she fell down a two story stairway as a result of the defendant landlord's negligent maintenance of this stairway which was claimed to have remained in the control of the landlord. Trial by jury, after a view, resulting in a verdict for the plaintiff. During the trial the defendant excepted to the admission and exclusion of evidence, to the refusal of the Court to charge as requested, and to portions of the charge as given. After the trial the defendant excepted to the Court's denial of her motion to set aside the verdict.
The plaintiff and her daughter occupied a third floor apartment in which entrance was provided by a straight line stairway extending directly from the first floor common piazza to the third floor door of their tenement with landings at the second floor level and at the top. The steps and landings were covered in part by rubber mats and the plaintiff claims a "rip" or "slit" in the mat on the top landing outside her apartment door caused her to catch her foot and lose her balance. She testified "I couldn't get to the rail," as it was too far away on her left-hand side as she faced downstairs so she fell and "went clear to the bottom."
It appeared there were two other apartments on the third floor using a single front staircase providing their entrance and exit. The tenants of these apartments could use the plaintiff's stairs in emergency via a third floor porch, which they used jointly, by going through a window to the landing at the top of the plaintiff's stair and thence down to the street.
Transferred by Goodnow, J. Further facts appear in the opinion.
McLane, Davis, Carleton Graf (Mr. Stanley M. Brown orally), for the plaintiff.
Warren, Wilson, Wiggin Sundeen (Mr. John N. Nassikas orally), for the defendant.
The first question before us is whether reasonable men could find that the defendant kept control over the stairs upon which the plaintiff fell. We believe they could, that this issue was properly submitted to the jury and in the absence of any error in the trial, as hereinafter shown, the defendant's exceptions are overruled.
Taking the evidence most favorable to the plaintiff, the jury could find the following facts. The plaintiff was given a key to her apartment but the defendant never gave her a key to the outside door at the foot of the stairs, and she told the plaintiff not to lock this door as she wished it to remain unlocked for other tenants to use as an emergency exit in case of fire. The defendant also told the other tenants that if they were trapped by fire blocking their own exit, they could go through the window on the top landing which is outside the plaintiff's door and go down the stairs to the street. She testified in so doing she was "covering the law" and satisfying the fire inspectors. "They want two door [fire exits] in every apartment and every apartment got two door." It also appeared that the door at the foot of the stairs could not be locked so as to prevent exit but could and on occasion was locked so that the plaintiff had to be let in by the defendant. The plaintiff's mail box was located in the stairway inside the door.
The defendant gave directions concerning the use of the lights in the staircase hallway, kept one on her own meter and instructed the plaintiff not to let them burn all night. About two months before the accident the defendant told the plaintiff with reference to the worn rubber mat that "she would fix everything up for us in the Spring." Shortly after the accident the defendant's son tacked around the edges of the hole in the mat.
It would serve no useful purpose to review the decisions in this and other jurisdictions in their myriad detail where courts have held that the landlord did or did not retain control. Each case must stand on its own bottom. We believe all the facts here taken together (cf. Leonard v. Manchester ante, 115) warrant the finding that the defendant kept control over the stairs and landings in question and was under a duty to keep them in reasonable repair. Menard v. Cashman, 94 N.H. 428, 430; Hunkins v. Company, 86 N.H. 356, 357, and authorities cited.
The defendant next claims that the Court erred in refusing to grant certain request. In substance this was that evidence other tenants could use the stairway in emergency is not such a use as to constitute reservation by the landlord for a use in common with other tenants as is required to impose a duty on the landlord to use ordinary care in keeping in safe condition such a stairway. Although the defendant concedes in that portion of her brief directed to argument on the motion for a nonsuit that the "narrow question" here is whether the defendant kept control over the stairway, the effect of this instruction is to make the reason why control was retained of paramount importance. This is not the issue here. Under our law the test is did the landlord keep control? Rowland v. Bank, 93 N.H. 246, 248; Gobrecht v. Beckwith, 82 N.H. 415, 417. Under all the facts here, we do not believe we are justified in holding in effect as a matter of law that this evidence was incompetent on the issue of control. The Court, therefore, properly denied the request and the charge given, instructing the jury to consider the emergency use of the stairs by other tenants along with other factors in deciding whether the defendant kept control, was correct. No other objections of merit appearing in the record the order is
Judgment on the verdict.
JOHNSTON, C. J. dissented: the others concurred.