Crumrine v. Grubb, 23373.

• Decision Date: 02 December 1931
• Docket Number: 23373.
• Citation: 5 P.2d 498,165 Wash. 391
• Parties: CRUMRINE et ux. v. GRUBB et ux.
• Court: Washington Supreme Court

5 P.2d 498

165 Wash. 391

CRUMRINE et ux. v. GRUBB et ux.

No. 23373.

Supreme Court of Washington

December 2, 1931

Department 1.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Action by O. J. Crumrine and wife against S.W. Grubb and wife. From a judgment for defendants, plaintiffs appeal.

Reversed and remanded, with directions.

Snively & Bounds, of Yakima, for appellants.

D. V Northland, of Yakima, for respondents.

HERMAN J.

Plaintiffs O. J. Crumrine and Maude Crumrine, husband and wife, sued defendants for damages on account of personal injuries sustained by plaintiff Maude Crumrine. The testimony showed defendants were husband and wife, and, as lessees, were operating a warehouse. Both plaintiffs had worked in the warehouse from some time in September, 1929 until December 22, 1929; O. J. Crumrine at trucking, loading cars, and segregating apples, and Maude Crumrine packing fruit. On the day the accident occurred, December 24, 1929 O. J. Crumrine and one other man, S. M. Carter, were the only people working in the warehouse. They started to work about seven o'clock in the morning, and went on the elevator to their work on the second floor. There was testimony that the elevator was operated by Mr. Carter, and that plaintiff O. J. Crumrine tried to turn on the electric light in front of the elevator shaft where Maude Crumrine was injured. There was testimony that the light did not function that morning, and that it had been out of order a large part of the time during the previous three months. The evidence showed that for a considerable length of time the gate guarding the elevator shaft had been defective, in that it jammed and refused to go into place automatically. At the time plaintiff Maude Crumrine was injured, the elevator shaft guard had not been put into place.

On the day of her injury, Maude Crumrine called at the warehouse to inquire as to her husband's physical condition. He had not been feeling well when he left for work. She found him trucking apples, had a few words with him, and then went into the office and talked to Mrs. Grubb, one of the defendants, and her sister. Testimony as to the conversation which occurred at that time is as follows:

'Q. Was anything said to you by Mrs. Grubb about leaving the office, or when you went in, or any other time? A. Do you refer to the Christmas tree?

'Q. Yes. A. Yes. When I first went in we talked, and about that party Saturday afternoon upstairs at the warehouse, and she said she thought it would be nice for us to take the tree over to O. J.'s brother's children. And we went visiting, and just Before I left she said 'Be sure tell O. J. to take that Christmas tree and bring it home to Jean's tonight."

Jean Crumrine (O. J. Crumrine's brother) was an employee of the defendants, who, although he was not on duty at the time of the accident, worked for defendants prior to and most of the time after the accident until August, 1930.

Maude Crumrine left the office and went back into the warehouse again. Her husband was not on the first floor then, and she called to him. He answered from upstairs. The rear stairway adjoined the elevator shaft. Mrs. Crumrine walked in the direction of the stairway, and was groping in the darkness for the stair railing, when she stepped into the unguarded elevator shaft. She fell a distance of fourteen feet, and sustained the injuries for which she seeks damages.

A trial to a jury resulted in a verdict for plaintiffs. Defendants interposed a motion for judgment notwithstanding the verdict and in the alternative for a new trial. The court granted the motion for judgment notwithstanding the verdict, but declined to pass upon the motion for new trial, this case having been submitted Before the effective date of the rules set forth in 157 Washington, requiring the court to pass upon both motions at the same time. From the judgment for defendants, plaintiffs appeal.

In Christianson v. Pacific Bridge Co., 27 Wash. 582, 68 P. 191, 194, the court said: 'This court has repeatedly held that generally the question of contributory negligence is for the jury, and that the court is rarely justified in withdrawing it from the jury; that, to justify the withdrawal of the case from the jury, the acts done must be so palpably negligent that there can be no two opinions concerning them in the minds of reasonable men.'

Respondents contend that the trial court was correct because the injured appellant was a licensee, and that no willful acts or omissions on the part of respondents were shown. There was evidence in the case that would have supported a finding by the jury based upon the theory that the injured appellant was an invitee. The jury...