Plaintiff filed this suit in the Twenty-fourth Judicial District Court for the Parish of Jefferson against Charles H. Hiern and his liability insurer, Liberty Mutual Insurance Company, seeking to recover damages for injuries allegedly sustained as a result of her fall down a stairway, claimed to be defective in design and construction, located in the interior of a two-apartment building owned by Charles H. Hiern.
The petition and the supplemental and amended petition allege, in substance, that plaintiff's son-in-law and daughter were lessees of Hiern, the owner of the upper apartment identified by Municipal No. 2409 Leonidas Street; that plaintiff lives with them; that they moved into the apartment about December 1, 1951. On December 5th plaintiff was awakened in the early morning hours by the sound of wind and rain, and upon hearing a noise which sounded like the downstairs door slamming, she arose from bed intending to proceed down the stairs to close the door; that she opened an upstairs door and in "attempting to step on what she thought to be a landing, she fell completely down the front stairs." Plaintiff charges that the stairway is defective in several respects and not in conformity with the Building Code of New Orleans, and that her fall was caused thereby.
Defendants interposed an exception of no cause of action which was overruled by the trial court. Then answering they deny plaintiff was injured as a result of a fall on the stairway and also denied that the stairway was defective either in design or construction or that the alleged defects caused plaintiff to fall. They affirmatively aver that the stairway was constructed in accordance with the usual and customary standards prevailing in the City of New Orleans and in compliance with the New Orleans Building Code, and that the sole and proximate cause of the accident was plaintiff's own negligence in failing to pay proper heed while approaching a stairway and in failing to use the usual and ordinary care requisite when one descends a stairway. In the alternative, defendants plead that plaintiff was contributorily negligent in these respects.
On these issues the matter proceeded to trial in the lower court and judgment was rendered in favor of plaintiff awarding her $6,500 for physical injuries and future
No one, save plaintiff, was present when the accident happened and her narration of the occurrence stands alone. Rather than paraphrase her testimony, we quote it verbatim:
For the third time plaintiff described in similar terms how the accident happened, as shown by the following testimony:
On cross-examination she was questioned as to her explanation of the fall as compared with the allegations of her petition, and her testimony appears thus:
The upstairs door Mrs. Curet alludes to is situated in a hall between the dining room and living room and this area was in darkness, or as the plaintiff put it, there were "no lights nowhere." Some contention is made that the hallway was sufficiently illuminated by the bedroom light, but we do not believe this to be a fact; at least it cannot be squared with Mrs. Curet's statement that there were no lights. Plaintiff made no attempt to switch on the light above the stairway door through which she says she fell.
No claim is made that any portion of the stairs broke, crumbled or gave way, and the ground of complaint is that the staircase was unsafe by virtue of its peculiar design, the alleged structural defects being, viz.: that the door should not have opened into a stairwell without a landing or platform; that a handrail was lacking; the flight of steps was entirely too steep; and that the individual steps, which were too narrow, varied in height and width.
Some controversy exists over which particular articles of the LSA-Civil Code have application to the case—670, 2315, 2322, 2692, 2693 or 2695—but a discussion thereof is unnecessary in view of our conclusion as to the negligence vel non of the property owner.
Our concern is whether Hiern, the owner and lessor, was guilty of actionable
Plaintiff attempted to show that the stairway is unsafe from an architectural point of view and that the manner of construction thereof is in direct violation of the Building Code of New Orleans. Maxwell, a licensed architect, testified, and Markey, who investigated the premises on behalf of defendants, stated in writing that the opening of the upper door directly onto a flight of stairs created a hazard. Maxwell insisted that a landing or platform having a width equal to the door should have been provided and further there should have been handrails to enable a person to maintain equilibrium in ascending or descending. Maxwell went so far as to assert that this is violative of the New Orleans Building Code (Ordinance 17,525, C.C.S.) adopted December 17, 1948, of which he claims co-authorship. He stated that his opinion, and that entertained by a majority of those whose duty it is to enforce the ordinance, is that certain articles, which he referred to by number, would have application to the premises in question.
The argument is made that we should adopt Maxwell's construction of the provisions of the ordinance under the principle of law that rulings of administrative officials charged with the interpretation of their own regulations carry great weight and are usually followed by the courts.
We have made careful analysis of the portions of the Building Code brought into question, and it seems clear, notwithstanding Maxwell's contrary opinion, that the ordinance does not by any of its provisions regulate the general design, style, or requirements for stairways, or landings or platforms, or railings thereon in two-family or duplex dwellings. By art. 103 of the Building Code a building designed for or occupied exclusively by two families is a "Two family dwelling," and by the provisions of art. 1401 "dwellings" are classified as "Group 1 Occupancies." In art. 3301 et seq., Chapter 33, it is stated: "The provisions of this Chapter shall not apply to Group 1 Occupancies except as specifically stated * * *." Nowhere in Chapter 33, which governs stairs and ramps, is there any indication that Group 1 Occupancies are brought within the purview of the provisions of any of the articles of said chapter.
No ambiguity exists in the pertinent provisions of the Building Code, and therefore there is no room to admit the construction given them by Maxwell. No contemporaneous construction is necessary to aid the court and such would be irrelevant where the language of the ordinance is free from doubt. Gulf Shipside Storage Corporation v. Thames, 217 La. 128, 46 So.2d 62; Liquidation of Canal Bank & Trust Co., 211 La. 803, 30 So.2d 841; State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601.
Some attempt was made to show that Ordinance 17,525, C.C.S., has since been amended and that its provisions presently require that stairways in duplex dwellings be equipped with landings and handrails and that the opening of doors into stairwells is prohibited. The amendments to the ordinance, if any, have no retroactive effect. The erection of the stairway was governed by the provisions of the then prevailing ordinance. Gosselin v. Stilwell, La.App., 78 So.2d 235; Boucher v. Paramount-Richards Theatres, Inc., La. App., 30 So.2d 211; DeLatour v. Roosevelt Hotel, Inc., La.App., 1 So.2d 353.
In Landry v. LeBleu, La.App., 172 So. 19, 20, a case involving a fall down stairs in a rented building, the Court of Appeal for the First Circuit held:
After arising from bed plaintiff most probably was in a sleep-ladened condition and thoughtlessly moved about the darkened hallway. She could have turned on the light which would have illuminated the stairwell, but unfortunately she failed to do this. Then in the darkness she opened the door although professing she had never before attemped to use the stairway and it was entirely unfamiliar to her. We believe her conduct in proceeding through the door into total darkness was a most imprudent thing to do, and the case must fall within the "step in the dark" principle. This rule of law is thus stated in 1 Shearman & Redfield on Negligence, page 320:
In Fahey v. Sayer, 9 Terry 173, 48 Del. 173, 99 A.2d 624, 625, the plaintiff was held contributorily negligent as a matter of law in entering a darkened doorway, notwithstanding the fact that there was sufficient light in the hallway on which the door opened. The plaintiff had occasion to seek use of the lavatory in defendants' premises and went into a rear hall from which there were several doors, including doors leading to the kitchen, a den and a utility room. There were three other doors similar in appearance and structure except for one leading to a cellar stairway and it was distinguished by a bolt and a chain which was open at the time. Plaintiff went to the door leading
This court has had occasion to apply that particular principle of law in the case of Briscoe v. Bailey, La.App., 74 So.2d 770, 771, holding the plaintiff to be negligent for entering a darkened doorway in unfamiliar premises. There plaintiff's brother had rented a room and bath from the defendants on the second story of the premises. The room and bath each had a door opening onto a gallery which ran toward the rear of the premises where a louver door leading to a common toilet was located. Plaintiff, visiting her brother one night, inquired as to the location of the toilet and was instructed to go to the rear end of the gallery where she "would come to a door, and push it open and walk in there." There was very little light on the gallery. Plaintiff instead of going to the last door, opened the door leading to the platform of a descending stairway, entered the door in the darkness and fell down the stairway. This court affirmed the judgments of the lower court, which dismissed plaintiff's suit and said:
This case is dissimilar to Fischer v. Dufresne, La.App., 192 So. 109. The facts in that case were that a customer was injured by falling in attempting to step down from a poolroom to a barroom because the wooden steps which had been in place twenty minutes before had been moved in order to permit a porter to sweep under them, and warning was not given until almost simultaneously with the fall. The court held that the plaintiff was not guilty of negligence because he did not know that the steps were movable and had no prior notice that they had been moved.
Carefully studying the testimony of plaintiff, we gain some impression that she leaned against the door which she thought to be locked, falling through and down the stairs when the door yielded to her touch. Several times she stated: "I touched the door there, I went down. There was no lock, no locks on the door."
If there was any negligence in the case it certainly was not on the part of the property owner, and the trial judge erred in rendering the judgment appealed from.
The large number of cases involving persons who fall down stairs and attempt to recover damages for their injuries from the owner or occupant of the premises provoked comment from the writers of Shearman & Redfield on Negligence. In Vol. IV, Sec. 797, page 1820, we find:
This court in Denneker v. Pecoraro, La. App., 64 So.2d 510, 515, in affirming dismissal of plaintiff's demand for damages alleged to have resulted from a fall down stairs, stated:
In Knight v. Travelers Ins. Co., La.App., 32 So.2d 508, 512, the First Circuit Court of Appeal quoting from Davis v. Buss Machine Works, 169 Mich. 498, 500, 135 N.W. 303, 304, said:
For the reasons assigned, it is now ordered, adjudged and decreed that the judgment appealed from be reversed and plaintiff's suit is dismissed at her cost.