Burnside v. Peterson

• Decision Date: 01 June 1908
• Citation: 96 P. 256,43 Colo. 382
• Parties: BURNSIDE v. PETERSON.
• Court: Colorado Supreme Court

96 P. 256

43 Colo. 382

BURNSIDE v. PETERSON.

Supreme Court of Colorado

June 1, 1908

Appeal from District Court, Teller County; Robert E. Lewis, Judge.

Action by Mary Peterson against W. O. Burnside. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. A. Prentice and Chas. C. Butler, for appellant.

Eugene Engley, for appellee.

MAXWELL J.

This appeal is from a judgment in favor of appellee in an action for personal injuries sustained by appellee while in the employ of appellant as a domestic servant.

The house was of several stories. Beneath the kitchen was a basement, and under that a cellar. The floor of the basement was of two-inch plank, eight or ten inches wide, unmatched. In the floor of the basement was an opening about two feet square which gave access to the cellar. To cover this opening a trapdoor was provided, made of the same material as the floor, the plank composing the trapdoor being fastened together by two-inch strips nailed to the bottom thereof. Cleats about four inches wide, nailed to the joists below the floor on either side of the opening, of the same material as the floor and trapdoor, afforded support for the trapdoor. The trapdoor fitted into the opening in the basement floor and was not attached to the floor or joists by hinges, or otherwise. The trapdoor fitted in the opening somewhat loosely, resting upon the cleat on one side, about one and one-fourth inches, on the other side about an inch, and at one corner about one-half inch, thus affording some play for the door within the opening. The basement was of two rooms the front room occupied by appellee, the rear room used as a laundry and furnace room. The exact location of the trapdoor in the basement floor is not apparent from the evidence; but it appears that in the discharge of her duties appellee frequently passed over the trapdoor. Appellee was not informed of the existence of the trapdoor, and knew nothing about it until about two weeks after she entered the service, when a porter in the employ of appellant came up through the trapdoor from the cellar with kindling; there being an entrance to the cellar from the outside. The evidence shows that previous to the accident the appellee saw the trapdoor opened two or three times only, when some one came through it from the cellar. Appellee knew that the trapdoor was without hinges or other visible fastenings to the upper side of the floor, never had any occasion to use, and never used it, never opened it, and never made any inspection of it to determine whether or not it was in any manner fastened to the underside of the floor. There was ample light in the room where the trapdoor was located. About half past 8 o'clock of the evening of June 1, 1903, appellee, in crossing the floor of the basement in the discharge of her duties, stepped upon the trapdoor, which 'tipped up on one end,' and precipitated her into the cellar below, resulting in injuries which are the basis of her suit. The complaint alleged that the injuries received caused appendicitis. The court instructed the jury to disregard all damages claimed on this account, as the testimony failed to show that the fall was the proximate cause of appendicitis.

It is contended that the judgment should be reversed upon the grounds:

(1) That no negligence upon the part of appellant was shown. A witness called by appellee, who examined the premises a few days before the trial, testified as to the size, shape material, and construction of the trapdoor, the manner in which it rested upon the cleats; and, then duoting from the abstract: 'With reference to this trapdoor, I don't think it was in a safe and secure condition as to construction without fastenings, hinges, or bolts, or anything of that kind. To make this trapdoor secure and safe it would be necessary to have hinges.' And upon cross-examination: 'After measuring this trapdoor the other night I put it in position, and then I had my weight on various parts of it; could not in any way throw it out of position by my weight. If the trapdoor was placed in position, it would be as safe then as any other trapdoor, so, when I answered that the trap was not safe, I simply meant that it would not be as safe as a trapdoor with hinges. Q. A trapdoor with hinges, if it were put to the edge of the cavity? A. Yes. All I meant was that, if those were carelessly placed, a person might not notice that--that was all I meant--but when that trapdoor was placed in position, no matter which way it was placed, it might be turned end for end. It was absolutely safe.' And on redirect examination: 'When I answered that this trapdoor was safe as any other trapdoor, I did not mean to state to the jury or to have the jury infer from that that the trapdoor was safely and securely constructed to prevent accidents.' The foregoing is substantially all the testimony upon this point, and it was undisputed. Counsel for appellant contended that upon the statement of this witness, upon cross-examination, to the effect that, 'when the door was placed in position, it was absolutely safe,' no negligence upon the part of appellant has been proven; and the absence of hinges or other fastenings cannot be held to be negligence, upon the theory that the master is under no obligation to furnish any particular kind of appliance, or to adopt the latest improvements, citing Denver Tramway Co. v. Nesbit, 22 Colo. 408, 45 P. 405, where this court after stating the principle relied on by counsel, said: 'He [the master] is only bound to see that that which he does employ is reasonably safe and suitable for the purpose for which it is designed.' The witness had testified that the trapdoor without fastenings, hinges, or bolts was not safe and secure, and that such appliances were necessary to make it safe and secure. His statement upon cross-examination, to the effect that the trapdoor was absolutely safe, in view of the explanation of this statement upon redirect examination, simply meant that the door was safe when in the position in which he had placed it when he...