Appeal from Circuit Court, Marion County. Edward O. Stadter, Jr., Judge Pro Tempore.
Bruce W. Williams, Salem, argued the cause for appellant. With him on the brief were Williams, Skopil, Miller, Beck & Wyllie, Salem.
Sam F. Speerstra, Salem, argued the cause for respondent. With him on the brief were Rhoten, Rhoten & Speerstra, Salem.
Tongue, Justice. McAllister, Presiding Justice, and Denecke, Howell and Bryson, Justices.
This is an action for personal injuries allegedly resulting from the collapse of a "pull down" ladder in a house rented by plaintiff from defendant. The jury returned a verdict for defendant. Plaintiff appeals from the resulting judgment.
Plaintiff's primary contention is that it was error to instruct the jury on the subject of contributory negligence
and, in particular, to instruct the jury that plaintiff, as a tenant, had a duty to inspect the ladder before using it and that if he failed to do so he was contributorily negligent if there was a defect that could have been discovered by a reasonable inspection.*fn1
Defendant, the owner and lessor of the house, had in January 1970, installed the "pull down" ladder in the ceiling of its garage to provide access to a storage space in its attic. He had some previous experience in building construction and had previously installed other "pull down" ladders.
In the ceiling of the garage the joists were "framed" around a rectangular opening of the proper size to fit a "frame" attached to the top of the folding ladder. That "frame," made of 1" x 4" or 1" x 5" boards, was then inserted in the opening and was attached to it by nails.
Defendant testified that for this purpose he used six nails -- four sevenpenny galvanized nails (2 1/4" long) and two eightpenny nails (2 1/2" long). He placed one nail in the middle of each of the four "sides," nailing through the "frame" and into the joists. The other two nails were placed in two "corners."
Defendant admitted that written instructions for installation came with the ladder and that he did not read them at that ...