(specially concurring).
I concur in the result reached by the majority but for the following reasons. Defendant’s first point of error was:
“That the trial court erred in not directing a verdict when the plaintiffs failed to introduce the statutes and ordinances which they relied upon in their claim of negligence per se.”
Defendants seemingly forget that the trial court in the pretrial order limited plaintiffs to the following claim:
“that defendants negligently maintained the premises in such a condition that the electrical system was unsafe and the fire protective and extinguishing system was inadequate * * *.”
That is, the plaintiffs’ theory was limited to an allegation of common law negligence. Defendants did not object to this part of the pre-trial order at the time it was entered, nor did they subsequently move to have it amended. The trial court, consistent with this limitation, did not permit the plaintiffs to introduce into evidence the statute and ordinances which formed the basis of their claim of statutory negligence (negligence per se). I appreciate the reason which the trial court gave for its action. Since the court could not understand the statutes and ordinances, it could not expect the jury to understand them. But regardless of the reason, the action of the trial court was consistent with the pre-trial order. The plaintiffs’ claim was to be submitted to the jury on the basis of common law negligence, not negligence per se. It was, therefore, not error for the trial court to refuse to direct a verdict at the close of plaintiffs’ case-in-chief for plaintiffs’ failing to introduce the statutes necessary for negligence per se.
I choose to discuss defendants’ points of error II and IV together:
II. That the trial court erred in instructing the jury as to the standard of care owed by the lessor to the lessee.
IV. The intervenor is entitled to a new trial based upon the erroneous standard of care imposed upon the lessor by the trial court.
The instruction referred to read as follows: “It was the duty of defendants, before and at the time of occurrence, to use ordinary care for the safety of the property of the plaintiffs and defendants’ own property.” I consider the giving of this instruction harmless error. The appropriate instruction which should have been given is N.M. U.J.I. Civ. 10.9: “A landlord must use ordinary care to keep the [stairs, hallway, other] in a reasonably safe condition (for the purposes for which the [stairs, hallway, other] were reasonably intended).” The directions for use state: “The instruction may only be used where there is more than one tenant in the building and portions of the building are reserved for common use.” It is apparent from the record that there were several apartments in the building where plaintiffs’ apartment was located. Just exactly how many is not shown; however, there were 154 apartments in the total complex.
The trial court in formulating the issues in its instructions stated the following:
“The plaintiffs claim that they sustained damages, and that the proximate cause thereof was one or more of the following claimed acts of negligence:
One: Failure on the part of the defendants, as owners of the premises, to exercise ordinary care to provide reasonable fire protective or extinguishing systems so as to provide reasonable safety to persons and property * *
Considering how specifically the trial court formulated the issue, I do not believe that the jury could have been misled by the instruction which was given.
The Supreme Court of Pennsylvania in Bowser v. Artman, 363 Pa. 388, 69 A.2d 836, 837, 12 A.L.R.2d 213 (1949) stated the rule applicable in situations such as this:
“It is well settled that those parts of a building which are used in common by the tenants remain under the control of the landlord [citations omitted]. In the instant case, since the fire escape was for the use of all third floor tenants, it remained under defendants’ control and it was their duty to maintain the fire escape in proper repair.”
We are precluded from deciding this case on the theory of warranty of habitability or of statutory negligence, because the warranty count was dismissed before trial and the statutory negligence theory was excluded by the pre-trial order; but the common law negligence theory on which plaintiffs tried the case is broad enough to support the verdict in their favor. Bowser, supra, speaks only of the landlord’s duty to maintain the common areas in proper repair, but the landlord also has a duty to construct or provide facilities in the common areas such as fire escapes and fire extinguishers where they are reasonably necessary for the safety of the tenants. Long before the courts began to interpret leases as contracts under which the landlord issued an implied warranty of habitability, the Court of Appeals of Kentucky determined that the common law of negligence provided a sufficient basis for imposing such a duty:
“[The landlord’s] duties in the premises require at his hands the exercise of such care in the actual construction or making of repairs to [common] portions of his leased building as well as to maintain them in a reasonably safe condition.” Nash v. Searcy, 256 Ky. 234, 75 S.W.2d 1052, 1054 (1934).
Plaintiff Mercer, after discovering the fire, jumped from the second-floor bedroom window to the ground. He then started looking for a fire extinguisher but was unable to find one. In the hallways of the building where plaintiffs’ apartment was located, there were cupboards built into the walls at various places, each of which had a faucet and space for a fire hose. The doors to these cupboards were painted either brown or black. There were no signs or anything else on the outside to indicate what they were for. It was discovered after the fire that in only one of these cupboards in plaintiffs’ building was there a fire hose, and that was too far from plaintiffs’ apartment to have been of any use even if Mercer had found it. The defendants had the duty to use ordinary care in installing equipment to extinguish or prevent the spread of fire. This equipment was required to be kept in a reasonably safe condition to accomplish the purposes for which such equipment was reasonably intended.
Defendants’ third point, “The lessees’ contributory negligence was established as a matter of law and therefore they are precluded from any recovery from the lessors’ ”, is without merit.
The plaintiffs had noticed that the lamp flickered when one walked near it. They thought this might be due to the light bulb and they changed it. The lamp still continued to flicker. They removed the bulb but did not unplug the lamp. The fire started in the area of the lamp. In my opinion, this was a situation where reasonable men could fairly differ as to whether plaintiffs were guilty of contributory negligence. The trial court, therefore, properly submitted the question to the jury. Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585 (1943).