Opinion
Decided August 4, 1931.
Negligence — Pedestrian injured stepping on cellar door on street — Abutting store owner's negligence in maintaining door, question for jury — Evidence sustained finding that pedestrian's injuries caused by defective door — Insufficient evidence immaterial, where nursing expense not submitted to jury — Testimony upon condition of door, two years after accident, competent, when — Damages of $3,000 not excessive, when — Special request to charge jury, properly refused — Liability of lessor for injuries resulting from lessee's negligence.
1. Whether store owners maintaining cellar door on street sinking when stepped on, resulting in plaintiff's tripping and sustaining injuries, were negligent, held for jury.
2. Evidence sustained finding that pedestrian's fall resulting in injury was caused by her foot catching in defective cellar door on street.
3. Defendant in damage suit could not complain of lack of evidence concerning reasonable value of nursing services, where nursing expenses were not submitted as element of damages.
4. Testimony concerning condition of cellar door two years after injury from tripping thereon held not too remote, where condition was same as at time of injury.
5. $3,000 damages, where both arms were broken in tripping on cellar door and plaintiff was otherwise shocked, held not excessive.
6. Charge to find for lessors if injuries resulted solely from negligence of lessee or some one on premises with his consent held properly refused under evidence.
ERROR: Court of Appeals for Butler county.
Mr. John A. Crist, for plaintiffs in error.
Mr. Fred J. Schatzman and Mr. C.W. Elliott, for defendant in error.
Elizabeth Lloyd, defendant in error here, brought suit against plaintiffs in error, Louis Schomer, Julius Lewis, Jack Lewis, and one Alex Casper, a tenant, for personal injuries suffered by her, by catching her foot in the covering to a cellarway, constructed and maintained on the street adjacent to the property of the plaintiffs in error.
At the trial of the case, Alex Casper was dismissed from the case by the court, upon his motion. The jury returned a verdict in favor of Mrs. Lloyd and against Louis Schomer, Julius Lewis, and Jack Lewis, the owners of the premises, in the sum of $3,000. Motion for a new trial was overruled, and judgment was entered on the verdict. From that judgment, error is prosecuted to this court.
The first contention is that there was no evidence of negligence on the part of the plaintiffs in error, from which the jury could render a verdict for the defendant in error. This claim is not tenable, for the reason that there is evidence tending to show that the owners of the property, plaintiffs in error here, had constructed and maintained a cellar door leading into the basement under their storeroom, leased to Alex Casper; that the door, or rather the covering of the stairway to the basement, was in two parts, so that when stepped upon one of the doors would sink, leaving a separation between the two parts; that the plaintiff below, Mrs. Lloyd, stepped upon one part; that it sank under her weight and her foot caught in the other part which extended above the part upon which she stepped, throwing her to the street, breaking both her arms and causing other injuries.
There is direct evidence that this defect existed and had existed for a long time prior to the leasing of the storeroom to Casper, and that other persons had fallen in the same way, and that the attention of the owners had been called to the defect.
Evidently counsel for plaintiffs in error bases his claim that there is no evidence on the following questions and answers directed to and given by the plaintiff on cross-examination:
"Q. The toe of your foot caught on the half of the other door? A. Yes, sir.
"Q. It didn't catch on the handle? A. To tell the truth, I don't know. It threw me to my face."
Had the petition grounded the claim on the one fact that the toe of her foot caught upon the handle, no case would have been made out, but the amended petition alleged the defect in the door as hereinbefore stated, and her testimony directly supports that allegation, although on cross-examination she states she did not know whether the toe of her foot caught on the handle. The jury were the proper judges of the cause of the accident from the evidence adduced, and, there being direct evidence tending to prove that plaintiff caught her foot in the door, it is sufficient to sustain the verdict on the weight of the evidence.
Complaint is made that there was no evidence of the reasonable value of the nursing services furnished to the defendant in error. While the evidence on this question as to the value is not clear, there is evidence of services rendered. In addition thereto, the plaintiff below testified that the services were worth $8 to $10 a day at the most. This is some evidence, and, while not of great value, it goes to the weight. Moreover, the court in its charge to the jury did not submit nursing expenses as an element of damage.
Plaintiffs in error further argue that the court erred in overruling the objection to the testimony of Fred Schatzmann. Schatzmann was called on rebuttal to testify as to the condition of the doors two years after the accident, and it is urged that this is too remote. This objection would have been sustainable, but for the fact that the condition of the doors at the time Schatzmann examined them was shown to be the same as at the time of the injury, and for a long time prior thereto.
The amount of the verdict is challenged, on the ground that it is excessive and was given under passion and prejudice.
Both arms of the plaintiff were broken in the accident, and she was otherwise shocked. The verdict was for $3,000. The fact is the injuries would have sustained a larger verdict.
Complaint is made of the refusal of the trial court to give defendants' charges 1 and 2, requested by them.
Special charge No. 1 is as follows:
"1. If the jury finds from the evidence that the injuries sustained by the plaintiff resulted solely from a negligent act of commission or omission on the part of Alex Casper, or someone on his leased premises with his consent, then the jury will return a verdict in favor of the defendants, Schomer, Julius Lewis and Jack Lewis."
Defendants' charge No. 1 was properly refused for the reason that there was no evidence whatever showing Alex Casper to have had anything to do with the cellar doors in question. His lease was for the storeroom only. The lessors, plaintiffs in error here, agreed in the lease to pay for all exterior repairing. He testified he had no interest in the doors, and did not use them. He was properly dismissed from the case, and special charge No. 1 was properly refused, because there was no evidence upon which to base the charge. The same may be said of special charge No. 2, which involves the same proposition.
Finding no prejudicial error in the record, the judgment of the court of common pleas of Butler county is affirmed.
Judgment affirmed.
ROSS, P.J., and CUSHING, J., concur.