Opinion
January 29, 1964.
Robert D. O'Leary ( Robert W. Bramley with him) for the defendants.
Lee H. Kozol for the plaintiff.
Exceptions sustained. This is an action of tort to recover damages for the death and conscious suffering of the plaintiff's intestate resulting from a fall on a common stairway of the defendants' multiple dwelling house. The case is here upon the defendants' exceptions to the trial judge's instructions to the jury and his refusal to give further instructions requested by the defendants. There are four such issues. 1. The judge charged the jury that "The number of steps isn't very material" and the judge refused to charge as requested that "If you find . . . [the plaintiff's intestate] fell from the top then there can be no recovery as there is nothing to warrant a finding of a defect at the top of the stairs." 2. The judge's remark to the jury regarding the absence of a doctor summonsed by the defendants and the judge's refusal to rule that there was no basis for the jury to draw any adverse inferences because the doctor was not present to testify. 3. The judge's instructions to the jury pertaining to the defendants' duty of care. 4. The judge's instructions on damages for death. The plaintiff concedes that with reference to the issue numbered 4 the judge was in error but contends that this error "does not injuriously affect the substantial rights of the defendants." The legal principles involved in these issues have been stated in many decisions of this court and require no elaboration.