Kessler v. the Cudahy Packing Co.

NOURSE, P. J.

Plaintiff sued for personal injuries caused from falling from a set of steps on defendants’ premises. These steps were hung on movable metal brackets at the top with the bottom resting upon the ground. They were maintained for the benefit and use of the employees of the plant, but were frequently used by customers instead of the regular stairway provided for them. Plaintiff was one of such customers who used the portable steps because they were more convenient in reaching his parked automobile. Two witnesses called by him testified the steps were wobbly and unsafe and had been in that condition for several months before the accident. One testified that he had always used them with fear because of their condition. The plaintiff then took the stand in his own behalf and denied this testimony, stating that he had used the steps three or four times a week for several months before the accident, that they appeared solid, and that he had not noticed at any time that they were wobbly or shaky. The jury must have believed the latter testimony when they rendered their verdict holding ( the defendants liable. We cannot say that it is wholly incredible when the trial judge, who heard all the evidence, let the verdict stand.

The issue raised by appellants is the error in the modification of their proposed instruction whereby the court struck out the portion reading: “When the perilous instrumentality is known to the owner or occupant and not to the person injured, a recovery is permitted, but there is no liability for injuries from the dangers that are obvious or as well known to the person injured as to the owner or occupant. ’ ’

The proposed instruction was a correct statement of the law and should have been given. The rule is stated in 20 Ruling Case Law, pages 56 and 57, as follows: “The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them. . . . The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger there

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from to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. . . . And, hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the.owner or occupant.”