Neely v. Brewer

Markell, J., delivered the opinion of the Court. This is an appeal from a judgment for defendant, entered n. o. v. after disagreement of the jury. Plaintiff ⁶⁹³ and her husband live in a house owned by her on Patterson Avenue in Cumberland. Between her house and the house of her neighbor, a Mr. Ruehl, is a 59 inch passageway, of which 30 inches is owned by her, the rest by the neighbor.

Her part is paved with a cement walk, the rest is unpaved. Defendant is a contractor, who in June 1947 covered the upper part of the Ruehl house with shingles. The whole work, on the four sides of the house was begun on June 3rd and “practically finished” on June 6th. On the side next to plaintiff’s house the work was done on June 4th and 5th.

To do the work ladders were set against the house, which with planks on the tops and brackets formed a scaffolding on which defendant’s employees worked. On June 3rd one of defendant’s employees asked and obtained permission from plaintiff’s husband to work in the passageway. On the morning of June 4th three ladders, and the scaffolding on them, were set up and secured against the Ruehl house, with the bottoms (plaintiff says) against her house. Plaintiff’s kitchen door opens on the passageway, 9 feet from the back of the house.

Two of the ladders were between the kitchen door and Patterson Avenue, the third back of the kitchen door. Plaintiff estimates it was five feet from the door, but says she does not know. Plaintiff’s husband is a bus driver. He gets up at 4:00 in the morning to go to work.

On June 3rd he and plaintiff went on a trip. They did not get home until about half past two the next morning and did not get up until about noon. That day, the 4th, the husband did not go to work. When they got up the ladders and scaffolding had been put up and were in use.

After breakfast plaintiff took the dogs out into the passageway. She says there was then a man up on the scaffolding. The ladders and scaffolding were not taken down when defendant’s employees stopped work for the day at 4 o’clock. About 4 o’clock plaintiff and her husband had supper.

After supper she washed the dishes in the kitchen sink. It was light outside at that time. There are ⁶⁹⁴ two windows in the kitchen, right over the sink, on the passageway. She says she could have seen across the passageway to the Ruehl house if she had looked, but she does not know whether she looked.

The next morning, the 5th, plaintiff and her husband got up at 4 o’clock (presumably daylight saving time), and she went downstairs to prepare his breakfast. Before he came down, she says, “* * * I thought I am afraid to go out after he goes to work and I opened the door, the dogs ran out, I grabbed the sweater as I did not have much clothing on and suddenly I thought that Mr. Flynn had a vicious dog that might get hold of my dogs and I just started and ran, that was all.” She ran toward the back of the house, struck the ladder, fell and was injured. She sued defendant, alleging that her injuries were caused by his negligence. Plaintiff says she did not know the ladders were there; she thought they would take them down at night; she did not investigate to find out whether they were down or not; she did not tell the workmen to take them down.

On the morning of the accident there was an electric light in the kitchen. “Q. When you open the door of the kitchen leading out to the walk, does any light go outside the kitchen? A. I was not thinking of light, I did not notice, I was buttoning my sweater. “Q. Did you leave the door open or close it? A. I always close it, it was cold. *