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Dodge v. Johns-Manville Sales Corp.

Decided: September 18, 1942.


On appeal from the Supreme Court.

For the plaintiff-appellant, Collins & Corbin (Edward A. Markley and John J. Breslin, Jr.).

For the defendants-respondents, Coult, Satz, Morse & Coult (Joseph Coult).


The opinion of the court was delivered by

CASE, J. This is an appeal from a judgment of nonsuit entered in the Supreme Court against the plaintiff and in favor of the defendants. The suit was for personal injuries suffered by plaintiff in coming down a movable ladder from the attic to the second story of her home while the employees of Johns-Manville Sales Corporation were engaged in fulfilling a contract with her to insulate exposed surfaces in the unfinished attic which topped her two story frame house. Hubert was the foreman in charge of the work.

There was no stairway leading to the attic. Instead there was a hatchway, ordinarily closed by a trap door. When entrance to the attic was desired a ladder, regularly kept in the cellar, was brought up and placed with the bottom resting

on the second story floor and the top against the side, or well, of the hatchway; and the trap door was removed. That had been the method of access during the entire period of plaintiff's occupancy -- twenty-three years. Plaintiff, as she testified, had made that use of the ladder many, many times; she was entirely familiar with the functioning of it.

The work crew came at an hour when plaintiff was not at home. The men asked how to get to the attic, and plaintiff's mother told them about the ladder. They got the ladder and placed it in position. A part of the work consisted of insulating the trap door. The rock wool was blown up through an outside hose and to keep it from drifting down to the second story the men covered the hatch opening with canvas and used their own outside ladder to get to and from the attic. Later in the day plaintiff came home and was asked by Hubert if she would like to see the work. She said that she would. So, quoting from her testimony, "He said as soon as they finished blowing in the rock wool that the men would have their lunch, and when they finished their lunch I could go up and see the work. * * * He said he would have to go up the outside way to remove the canvas cover. * * * And I would go up the inside way." Miss Dodge examined the ladder by putting her hands against it. She found that it felt firm and that it looked "normal." She then went to the attic, using the ladder, made her observation and came down again. While in the attic she had noticed that there were many flies, some of which she crushed against the window. She went downstairs, got a pail of water and again went to the attic for the purpose of cleaning the windows; and during her stay there the men were hammering heavily in installing the insulation at and about the hatchway. The ladder was not fastened either to the floor or to the hatchway; and there were no facilities for fastening it. Miss Dodge's method of getting down was to take a sitting position on the top of the hatchway -- on the crossboard (apparently sitting on the part of the hatchway against which the top of the ladder rested). There was no rail or other contrivance extending up to grab hold of, and she would put her feet on

the ladder, holding on the frame of the hatchway on the side, and as she turned and got on the ladder she would take hold of the ladder and go down. On this occasion she made her first ascent, her first descent and her second ascent in entire safety. The ladder was apparently as it should be. It did not move as she was thus using it and, so far as she observed, it remained in the same position from one use to the next. She noticed nothing wrong. As she was going down the second time and had reached the stage where she placed her full weight on the ladder, the ladder slid and threw her.

The trial court held that there was nothing in the case to go to the jury and nonsuited.

Miss Dodge appeals and makes these points on her brief: (1) That the trial court erroneously nonsuited the plaintiff because the testimony presented fact questions for the consideration and decision of the jury; (a) the defendants having placed the ladder in position owed a duty to the plaintiff to use reasonable care to properly place it (or give warning of its unsafe condition) and to do nothing to displace it or make it unsafe after having placed it (or give warning of its unsafe condition), and under the evidence whether or not the defendants violated those duties was a question of fact for the jury; (b) whether or not the plaintiff was guilty of contributory negligence was a question of fact for the jury; (c) the plaintiff did not assume the risk -- to say the least that question was for the jury. (2) ...

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