Clawson v. Walgreen Drug Co., 6824

CourtSupreme Court of Utah
Citation162 P.2d 759,108 Utah 577
Decision Date23 October 1945
Docket Number6824

Appeal from District Court, Second District, Weber County; Glenn W Adams, Judge.

Action by David Clawson, Jr., against Walgreen Drug Company and another for personal injuries sustained by plaintiff in colliding with an open sidewalk door maintained and used by defendant. Verdict and judgment for plaintiff and the defendant named appeals.


Howell Stine & Olmstead, of Ogden, for appellant.

Thatcher & Young, of Ogden, for respondent.

Wade Justice. McDonough and Turner, JJ., concur. Wolfe, Justice (concurring in part, dissenting in part). Larson, Chief Justice (concurring in part, dissenting in part).


Wade, Justice.

Tort action to recover damages for personal injuries incurred when the plaintiff fell after colliding with an open sidewalk door maintained and used by the defendant. The jury returned a verdict in favor of the plaintiff and the defendant appealed.

The defendant, Walgreen Drug Company, a corporation, operates a drugstore in Ogden, Utah. The store is located on the northwest corner of the intersection of Twenty-Fifth Street (running east and west) and Washington Avenue (running north and south). In connection with the operation of this drugstore, the defendant maintains and uses an opening in the sidewalk on Twenty-Fifth Street for the purpose of receiving merchandise into the store basement. This opening is covered by a double iron trap door which locks on the under side and opens upward from the sidewalk. When fully opened the doors stand about two feet high and block the entrance to the opening when it is approached either from the east or west. The opening is against the building on the north and the south end is unguarded when the doors are opened.

On the morning of August 10, 1943, the sidewalk doors were open and unattended. The plaintiff approached the opening. On direct examination the plaintiff testified that he stepped aside to let a woman pass and stepped into the hole. On cross-examination he admitted that he had told his doctor that he bumped into one door and fell against the other one. He also stated that he might have bumped into the door and knocked it down. He was positive that he did not fall down into the hole but stopped at the lid on the other side. One Rufus Southam was called to testify for the plaintiff. On direct examination he stated that the plaintiff came down the street and

"run smack into them doors, * * * ran into them and went right over the top." "He hit the east door first and knocked that down and hit the other door."

Plaintiff testified that he had faulty vision and that the opening was in the shadow of an awning used by the defendant to shade the store windows.

By way of numerous assignments of error the defendant contends: (1) That as a matter of law there is no showing that the defendant was guilty of negligence which proximately caused the injuries to the plaintiff; (2) that the plaintiff was guilty of contributory negligence as a matter of law; (3) that the court erroneously permitted the plaintiff to plead and introduce in evidence a certain city ordinance relating to the repair of sidewalk doors and erroneously submitted the said ordinance to the jury as a measure of the defendant's duty to the plaintiff; (4) that the court erred in various respects in its rulings on admissibility of evidence; and (5) that the court erred in various particulars in its instructions. Contentions Nos. (1) and (3) are interrelated and can best be discussed together.

The ordinance was not limited to requiring that the cellar doors or coverings be kept in good repair but it also required that such doors and coverings be kept safe for the passage of the customary traffic. The Ordinance provides:

"Trap doors and openings in sidewalks regulated. It shall be unlawful for the owner or occupant of any building having a cellar opening upon any street or sidewalk to fail to keep the door or other covering thereon in good repair and safe for the passage of the customary traffic on such street or sidewalk and if the owner or occupant of any such building shall neglect or refuse to properly repair any such door or covering for twenty-four hours after notice so to do, the Street Supervisor or the Chief of Police shall forthwith cause such repairs to be made at the expense of the owner or occupant." (Italics added.)

In the above quotation we have italicized only those portions thereof that have a bearing on this case. This ordinance means as far as this case is concerned just what it would have meant had the parts not italicized been omitted in which case it would have been a clear provision that occupants of buildings having an opening on the sidewalk must keep the door thereof in a safe condition for the customary traffic thereon. The ordinance uses the words "in good repair and safe," not "in good repair so that it will be safe," which indicates an intention to require not only that the doors be kept in good repair but in a safe condition at all times, whether open or closed, for customary traffic. If this were not so, one who was injured because the doors were not kept in good repair could recover, whereas another was injured by doors which were in good repair but which had not been properly closed so that one door projected about one-half inch above the other, could not recover. It is true that the rest of the ordinance emphasizes the keeping of the doors in good repair but that does not take therefrom the positive requirement that it also be kept safe.

The court by its instructions to the jury so construed the ordinance. In substance they were told that if they found that defendant violated the ordinance "by failing to maintain the opening reasonably safe for the passage of the customary traffic on the sidewalk" they should find him guilty of negligence. Under this instruction the jury could only find the defendant negligent on the ground that he did not keep the door of the opening reasonably safe for the passage of the customary traffic on the sidewalk by leaving the door open, unattended and unguarded. This instruction would have been correct under the common law theory of negligence, even if there had been no ordinance.

Any negligence which is disclosed by the evidence must lie in the fact that the defendant left the doors open while not in use. Witness Southam testified that the doors were open when he passed them about 10:30 a. m.; that he went across theroad and sat down on a bench and had been sitting there for about 15 minutes when he saw the plaintiff approaching the area of the sidewalk door. He testified that there were no attendants around the door and that it was not being used in connection with the unloading of any vehicles. This evidence is uncontradicted. It is admitted that the opening through the sidewalk was unguarded except as the open doors obstructed the approach from either the east or west. We can therefore accept as established facts that the doors stood open for at least 15 minutes, unattended and unguarded except by the doors themselves, and that the opening was not during that time in use by the defendant.

In the use of the sidewalk door the defendant had a duty to use the doors with reasonable care so as to not subject others to unreasonable risks of harm. As compensation for the privilege of maintaining a door through the public sidewalk, the defendant had the duty of safe-guarding the opening so as fairly to protect the public in its ordinary use of the street. This public street was open alike to the weak, the lame, the halt and the blind and those, as the plaintiff, suffering from impaired eyesight. The presence of persons with impaired eyesight was reasonably foreseeable. A fall into the opening threatened serious bodily harm. These factors should be taken into account in determining whether or not the defendant exercised the requisite degree of care. The conduct of the defendant at least presented a jury question on the issue of negligence. Such appears to be the uniform holding of the various authorities. See collection of cases in 70 A. L. R. commencing on page 1358. Whether the open doors themselves furnished a sufficient guard was also a jury question. Bosler Hotel Co. v. Speed, 167 Ky. 800, 181 S.W. 645. The court therefore did not err in giving such instruction.

In contending that the plaintiff was guilty of contributory negligence as a matter of law, the defendant assumes that the law imposed the duty upon the plaintiff to keep his eyes constantly upon the sidewalk in anticipation of open sidewalk doors. Such, however, is not the law. As noted by the annotator in 70 A. L. R. 1358, the traveler on public sidewalk must exercise reasonable care for his own safety, "but this does not necessarily mean that a pedestrian is required to be constantly watching for openings in the sidewalk. The pedestrian has the right to assume that the sidewalk is in reasonably safe condition for travel, and to act on that assumption." See also Shearman and Redfield on Negligence, Vol. II, p. 922.

The plaintiff, though under disability, was not necessarily required to exercise such a degree of care as to overcome the effects of the disability. The correct rule is that he must use reasonable or ordinary care for his own safety. In determining what is ordinary care the jury should take into account the physical disability. The care required of a person with defective eyesight is that care which an ordinarily prudent person with defective eyesight would use for his own safety under all the circumstances. Smith v. Sneller, 345 Pa. 68, 26 A.2d 452, 141 A. L. R. 721, 724, and cases collected therein.


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    • August 28, 1947" This rule was laid down in Atwood v. Utah Light & R. Co., 44 Utah 366, 140 P. 137, and was followed in Clawson v. Walgreen Drug Co., 108 Utah 577, 162 P.2d 759, 764. If we were to follow the reasoning of these cases, Utah would probably follow the third rule. However, * * * 9 we do not......
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    ...P.2d 647; Morris v. Cartwright, 57 N.M. 328, 258 P.2d 719; Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798; Clawson v. Walgreen Drug Co., 108 Utah 577, 162 P.2d 759; Hoefer v. Last, 221 Wis. 102, 113, 266 N.W. 196, 201. Of the two elements (a) determination of extent of impairment of earnin......
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