Whisler v. U.S. Nat. Bank of Portland , 160 Or. 10 ( 1938 )

In Banc. Plaintiff in this action seeks to recover damages for personal injuries sustained in falling through a trap door in the floor of a building occupied by the defendant Ex-Cel Pharmacy under a lease from the defendant United States National Bank. Plaintiff obtained a verdict and judgment against both defendants in the sum of $3,874.64.

The defendants, by separate motions for a judgment of involuntary nonsuit and a directed verdict, have presented for review the sole question as to whether the court erred in submitting the case to the jury.

The defendant bank denies any negligence on its part as it had no control or supervision over the use of the trap door at the time plaintiff was injured and alleges affirmatively the defense of contributory negligence and assumption of risk. The defendant Ex-Cel Pharmacy contends that plaintiff, as a matter of law, is precluded from recovery by reason of her contributory negligence and alleges that any danger involved in the use of the trap door was assumed by plaintiff as incident to her employment.

In view of the assignments of error, the statement of facts will be considered in the light most favorable to plaintiff. The court will not be concerned with questions of fact involving a conflict of evidence.

For the purpose of operating a drug store, Ex-Cel Pharmacy leased from month to month from the United States National Bank a certain part of the lower floor of a building in the city of Portland. Plaintiff was employed at the soda fountain and lunch counter operated in connection with the drug store. Her hours of work were from 5 o'clock in the afternoon until midnight. At the time of the accident in question, on May 30, 1936, she went into the drug store at about 4:30 in the afternoon to get an apron to take to the laundry. This apron was in an enclosure at the rear of the drug store wherein the trap door was located. When plaintiff reached for her apron she fell through this trap door, sustaining severe and permanent injuries.

The evidence tends to show that the light was very poor in the enclosure and a person could enter only through a small gate flush with the trap door which, when closed, constituted the greater part of the floor. Steep, narrow stairs led from the trap door to the floor of the basement about eight feet beneath. Above the gate and on the wall of the enclosure were hooks upon which the plaintiff, with knowledge and permission of the defendant Ex-Cel Pharmacy, hung her working apron and coat. There was a small "25 or 40 watt" light in the basement which, according to some witnesses, reflected on the stairs and trap door opening, but plaintiff testified that the electric light in the basement was not burning. All witnesses agree that the electric light over the prescription counter in the rear of the store and opposite the enclosure in question was not turned on. Some witnesses testified that had such light been burning it would have reflected no light on the trap door. A few minutes prior to the accident a druggist in the employ of the defendant Ex-Cel Pharmacy had opened the trap door to accommodate an elderly friend who wanted to go down the stairs into the basement for the purpose of using a toilet. After his friend returned from the basement the attention of the druggist was apparently diverted by customers in the store and it is quite reasonable to assume that he forgot to close the trap door.

The plaintiff had been in the employ of the defendant Ex-Cel Pharmacy for about four months before the accident happened and was familiar with the operation and use of the trap door and the stairs leading therefrom to the basement. She testified, however, that at the time in question she looked to see whether the trap door was closed but, on account of the dim light, was unable to see plainly. She said the trap door was usually closed and that the gate in front of the same was generally fastened by a hook, although it was not fastened at the time of her accident. Plaintiff thus describes how the accident occurred:

"Well, I walked into the store to the back end of the store, and I nodded to Mrs. Snedeger, and I spoke to Mr. Bradshaw, he was at the back of the case by the entrance as you go into the room, and I looked into the room and didn't see any light, and it didn't look to me like the trapdoor was open, and I seen my apron there and stepped in and reached for it, and that is all I remember."

On cross-examination, in response to the question, "You testified a few minutes ago that you come in and you saw your apron and opened the door and reached for your apron," the plaintiff answered:

"I looked and I didn't see no light and the trapdoor didn't look open to me and it was dark, and I saw my apron hanging there, and I reached for it."

We see no basis for liability against the defendant bank. It had no control over the manner in which the trap door was used. Certainly it is not the law that a landlord, in order to avoid liability for negligence of his tenant, must follow him around to see that a trap door not in use is closed. There is no evidence to indicate any structural defect in the trap door nor was there any covenant in reference to repairs. As a matter of fact, there were no repairs to make. We cannot agree with respondent that the manner in which the trap door was constructed and maintained constituted a nuisance. Trap doors in buildings occupied for business purposes are not unusual. Ordinarily, there is nothing inherently dangerous about a trap door. It becomes dangerous only by reason of its use.

Lewis v. Jake's Famous Crawfish, 148 Or. 340 (36 P.2d 352), in which numerous authorities are cited, is decisive of the case at bar so far as the defendant bank is concerned. In that case the plaintiff was injured by falling through a trap door in a sidewalk. On appeal it was held that the defendant owner of the building was entitled to a directed verdict. The court said:

"It is common knowledge that sidewalk doors, similar to those involved in this action, are in general use in the city of Portland, and it must be presumed, so far as this case is concerned, that their maintenance and use do not constitute per se a nuisance. There was nothing inherently dangerous in the construction of these doors, or in their use. The accident occurred not through the fault of the owner of the premises but from the negligence of the lessee in permitting the doors to remain open when not in use and at a time when the public was entitled to the entire width of the sidewalk."

Also see: Torpey v. Sanders, 248 A.D. 303 (289 N.Y.S. 532); Tiffany on Landlord and Tenant, 681, and cases cited in note 70 A.L.R. 1370.

A much closer question is presented as to whether plaintiff, as a matter of law, was guilty of contributory negligence. In considering the evidence the court must measure the conduct of the plaintiff by the standard of care that an ordinarily prudent person would have exercised under the same circumstances. Too often courts, in the quietude of the office and in the light of subsequent events, are inclined to say that an accident could have been avoided had the person injured done this or that thing. Such, however, is not the test. Plaintiff, in the instant case, undoubtedly assumed that the trap door was closed. Whether, under such circumstances, she ought, in the exercise of reasonable care, to have turned on the basement light to see if the trap door was open was a matter for the determination of the jury. She had the right, in the absence of knowledge to the contrary, to assume that the trap door would be closed when not in use. She was not obliged to anticipate that a death trap would be created.

In our opinion, different reasonable deductions from the evidence might well be made by fair-minded persons as to whether plaintiff exercised due care to avoid injury. As stated in GrandTrunk Ry. Co. v. Ives, 144 U.S. 408, 417 (12 S. Ct. 679,36 L. Ed. 485), and quoted with approval by this court in Rice v. City ofPortland, 141 Or. 205 (7 P.2d 989, 17 P.2d 562):

"When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court."

The trial court did not err in submitting the issue of contributory negligence to the jury. We see no need of reviewing authorities on such question. The law in reference thereto is well settled. It is in the application of the law to a particular factual situation that difficulty often times arises and, of course, the decision in each case hinges upon the particular facts involved.

We think plaintiff at the time of the accident had the status of an invitee rather than that of an employee: Putnam v.Pacific Monthly Co., 68 Or. 36 (130 P. 986, 136 P. 835, 45 L.R.A. (N.S.) 338, L.R.A. 1915F, 782, Ann. Cas. 1915 C, 256). Surely she was not a trespasser. She did not enter the drug store to begin work. Her time was her own and she could do what she pleased until 5 o'clock. Cases wherein a person was injured on the way to or from work on the premises of his employer are not in point: Wintermute v. O.W.R. N. Co., 98 Or. 431 (194 P. 420). If plaintiff was an invitee the defense of assumption of risk is not involved.

The judgment as to the defendant United States National Bank is reversed and that against the defendant Ex-Cel Pharmacy is affirmed.

BAILEY, J., did not participate in the decision of this case.