The plaintiff is guilty of contributory negligence as a matter of law. The evidence touching upon his acts is undisputed. On October 5, 1946, at about 10:30 *Page 782 P.M., plaintiff and his wife went to visit Mr. and Mrs. Syverson who were then living in a rear apartment on the ground floor of the building in which the accident occurred. They entered the rear door and passed through the hall to the apartment, passing an open stairway, toilet room, and elevator shaft to their right on the north side of the building and across the hall from the apartment. The hall was then lighted and was still lighted when the two men later in the evening went to the Nifty Nook at the front of the building for lunch. Plaintiff had previously been in the place a few times and on one occasion had spent parts of two days cleaning the apartment. Shortly before 12 o'clock plaintiff stepped from the apartment into the hall for the purpose of going to the toilet. At the time, they were about to go home and his wife sat and waited for him.
On direct examination he testified:
"Q. What was the condition of the hall relative to any lights at the time you stepped into it?
A. I walked out and right into the hall, it was dark, I figured I knew where it was and I walked in there and I don't remember any more. There was no light at that time, sometimes there are lights they tell me.
Q. Did you open any door?
A. No, I didn't. I opened the door from the Syverson apartment out into the hall and I didn't open any more doors.
Q. What is the next thing that you know?
A. I remember the ambulance, I remember I seen Ted's ambulance because I knew the ambulance driver and I remembered him. That's about the first thing I remember."
On cross examination he testified:
"Yes, I was alone.
Q. And you knew where the toilet was?
A. I knew it was around there.
Q. Was there any light in the toilet?
A. No, I don't think so; I didn't get that far.
Q. Let's see, when you opened the door it was completely and utterly dark in the hallway?
A. That's right. *Page 783
Q. You could see nothing?
A. No.
Q. And you didn't see anything, nevertheless you walked forward regardless of that?
A. Walked because I figured I knew about where it was but didn't quite know exactly.
After the accident, one Dr. Devine cared for plaintiff at the hospital, and was called by plaintiff as a witness. On cross examination the doctor testified that he asked plaintiff whether he had been drinking that evening and he replied that he had had a few drinks of hard liquor but did not answer his question as to how many; that he made a chart or record of the patient's personal history and therein recorded this information. Such chart was received in evidence. Plaintiff, his wife and the Syversons had testified that there had been no drinking in the apartment that evening but the doctor's statements remain uncontradicted.
It is apparent from the testimony that although the plaintiff had a general familiarity with the premises, he did not have any such entire and close familiarity as a person has with premises that he has occasion to use constantly. It is not shown that he was ever in the hall when there was utter darkness or in the toilet at any time. If he were rational and in possession of his faculties, his actions show more strongly than words that he was not familiar with the premises in the dark and that he had no such familiarity with the location of the toilet as would justify a prudent person in attempting to walk to it in total darkness.
An examination of the floor plan, Exhibit B, discloses that the hall was five-feet four-inches wide and that when the plaintiff stepped into the hall, he was less than a foot from the doorway in the hall partition. When he stepped through such doorway, he was less than a foot west and less than five feet south of the elevator door. The elevator had double doors, each two feet wide. The east elevator door was permanently closed at all times. It was through the west elevator door that plaintiff entered the shaft and if such door were then open, it protruded into the hallway. *Page 784
According to his testimony, plaintiff stepped directly from the lighted apartment into the hall which was completely dark. He did not wait to have his eyes become accustomed to the darkness nor to take his bearings. Plaintiff knew that when he stepped through the doorway in the partition into the hallway the elevator shaft was less than five feet directly north and that the door to the toilet was some six feet further east. Yet he turned north, walked on without hesitation and without attempting to pick his way or to feel with his hands or feet. If his testimony is true, he walked through the elevator door, only two feet wide, and had no knowledge that he was doing so or sensation of falling and knew nothing about what happened until he found himself in an ambulance.
This is not a case where a person who is familiar with the premises proceeds to go the way he had been accustomed to go to reach his destination and is injured because of unanticipated obstructions placed in his way. If plaintiff had proceeded in the right direction, there was nothing to interfere with his progress and he would not have been injured. He went in the wrong direction.
There was no emergency or stress of circumstances rendering it necessary for plaintiff to proceed in total darkness. He and his wife were about to go home and they lived but two blocks away. After the accident, lights in the hall and toilet were turned on and the Syversons used their flashlight to look down the elevator shaft. It would have been a simple matter for him to have dispelled the darkness in the same manner before the accident. It is apparent that had he left the apartment door open, at least a part of the hall floor would have been illuminated. He did not choose to avail himself of any of these but proceeded in utter darkness, with full knowledge of the presence of an elevator shaft and an open stairway, in a direction he did not intend to go, — a direction which could not bring him to the destination which he sought.
"Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which *Page 785 defendant is responsible, contributes to the injury complained of as a proximate cause." 45 CJ 942.
"The degree of care required to be used in any given case to avoid the imputation of negligence must be according to the circumstances or in proportion to the danger reasonably to be anticipated — such care as is ordinarily sufficient under similar circumstances to avoid danger and secure safety." 38 Am Jur § 32, pp 678-679.
"It is elementary that every person when in proximity to an elevator shaft the existence of which he knows is bound to use reasonable care for his own safety." 18 Am Jur § 51, p. 549.
"The law requires a person to use his faculties, if he can reasonably do so, and his failure to so do, if it contributes to the injury, will prevent a recovery, and a person will be deemed to have actually seen what could have been seen if he had looked." (209 P. 1100), Johnson v. Washington Route Inc., 121 Wash. 608,209 P. 1100; DeHoney v. Harding, 300 F 696, 699; Evans v. Orttenberger, 242 Mich. 57, 217 N.W. 753; Central Pub. House v. Flury, 25 Ohio App. 214, 157 N.E. 794; Massey v. Seller, 45 Or. 267,77 P. 397; Wilkinson v. Webb-Carter Shoe Co. 57 S.D. 458,233 N.W. 291; Gavin v. O'Connor, 99 N.J.L. 162, 122 A. 842, 30 A.L.R. 1383; 38 Am Jur § 191, p 868.
The foregoing cases were cited with approval in Johnson v. Mau,60 N.D. 757, 236 N.W. 472.
"One who voluntarily walks about in total darkness in a strange place must of necessity know that he faces the danger of obstructions, pitfalls, accident, and injury.
"Darkness alone calls upon a person to exercise greater caution for his own safety than is ordinarily required." Wentink v. Traphagen, 138 Neb. 41, 291 N.W. 884; Brusseau v. Selmo, 286 Mich. 171,281 N.W. 580; Huyink v. Hart Publications, Inc., 212 Minn. 87,2 N.W.2d 552; Erickson v. McKay, 207 Wis. 497, 242 N.W. 133.
"Contributory negligence will defeat recovery, even though the negligent act of the defendant consisted in the violation of a statute or ordinance." 45 CJ 980; Morrison v. Lee, 22 N.D. 251, *Page 786 133 N.W. 548, 38 LRA NS 412; Sartori v. Capitol City Lodge,212 Minn. 538, 4 N.W.2d 339.
"The want of ordinary care constituting contributory negligence must be determined from the facts disclosed in each particular case and is generally a question of fact for the jury. When the standard of care is fixed and the measure of duty is defined by the law and is the same under all circumstances, and where plaintiff's compliance or failure to comply with such standard is evidenced by undisputed facts from which only one inference can reasonably be drawn, the question of contributory negligence is one of law for the court." 45 CJ 1299-1301; Johnson v. Mau, 60 N.D. 757,236 N.W. 472, supra; Dahl v. Minneapolis, St. P. S.S.M.R. Co. 57 N.D. 538, 223 N.W. 37; Ferm v. Great Northern R. Co. 53 N.D. 543,207 N.W. 39.
Whether only one inference may be drawn must also rest with the court. 38 Am Jur 1059.
"Numerous cases support the proposition that any person, whether he be on the premises for the purpose of transacting business, or for social or other purposes, who, being unfamiliar with the premises, proceeds through the darkness on such premises, without being able to see what dangers such darkness may conceal, and there being no circumstances to show he was misled through a false sense of safety, is, at least in the absence of evidence indicating any emergency or stress of circumstances rendering it necessary that he should proceed, guilty of contributory negligence as a matter of law." Anno 163 ALR at p. 590.
"A person who comes into an unfamiliar situation, where a condition of darkness renders the use of his eyesight ineffective to define his surroundings, is not justified, in the absence of any special stress of circumstances, in proceeding further, without first finding out where he is going and what may be the obstructions to his safe progress. Violation of that rule is contributory negligence as a matter of law." 1 Shearman Redfield Negligence, Revised ed, § 131, p 320.
The majority cite certain cases touching upon the plaintiff's contributory negligence being a question for the jury. A reading of those opinions will disclose that in none of them was there *Page 787 a situation presented similar to the one in this case. In none of them did the plaintiff deliberately and needlessly walk into a place in utter darkness when there were readily available means whereby the place could have been lighted. In such cases, the plaintiff was confronted with some emergency or acted under the stress of special circumstances.
The majority members also find that the relation of landlord and tenant existed between defendant and Syverson and that plaintiff was therefore an invitee. Whether this conclusion is correct is immaterial in view of plaintiff's own negligence. However, there is no evidence sustaining such relationship.
Generally, the relation of landlord and tenant must arise from a contract. 51 CJS 510.
Privity of estate is essential. 51 CJS 511.
The lessee agrees to return possession at a future time. Sec. 47-1601 of 1943 R.C.
When the term of leasing has not been agreed upon, it is presumed to be monthly. Sec. 47-1619 of 1943 R.C.
In this case it was agreed that the relationship of landlord and tenant should not exist so that the transaction would not come under the rent control act. It is also clear that when the employment came to an end Mr. Syverson would not have been entitled to a notice to terminate his right of occupancy. Whether such right is that of a tenant or servant, depends on the language of the agreement and attendant circumstances. 51 CJS 514.
The testimony with reference to this question is undisputed. Whether the relation did exist is therefore one of law for the court. 51 CJS 530.
In any event, "It is well recognized that a person may be an invitee in a portion of a building and not enjoy that status as to other portions thereof." Medcraft v. Merchants' Exchange,211 Cal. 404, 295 P. 822 cited in Johnson v. Mau, 60 N.D. 757,236 N.W. 472, supra.
The evidence clearly establishes that Syverson was a servant and not a tenant. 51 CJS 514 (6c).
Plaintiff was an uninvited guest and a mere licensee to whom defendant owed no duty except to refrain from wilfully or wantonly injuring him. He was guilty of contributory negligence *Page 788 as a matter of law and not entitled to recover whether he was a licensee or invitee and regardless of defendant's negligence.
Defendant's motion for judgment notwithstanding the verdict should have been granted.
I am authorized to say that Judge Christianson concurs in this opinion.
CHRISTIANSON J., concurs.
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