Gibson v. Gernat

• Decision Date: 01 March 1920
• Docket Number: 3278.
• Citation: Gibson v. Gernat, 267 F. 305 (D.C. Cir. 1920)
• Parties: GIBSON v. GERNAT.
• Court: U.S. Court of Appeals — District of Columbia Circuit

267 F. 305

GIBSON v. GERNAT.

No. 3278.

United States Court of Appeals, District of Columbia.

March 1, 1920

Submitted December 1, 1919.

F. D McKenney, J. S. Flannery, and G. B. Craighill, all of Washington, D.C., for appellant.

S. F Taliaferro and Thos. P. Littlepage, both of Washington, D.C for appellee.

ROBB Associate Justice.

This appeal is from a judgment in the Supreme Court of the District for the plaintiff, appellee here, in an action for damages growing out of injuries sustained by the plaintiff in falling down a dumb-waiter shaft in defendant's dwelling house.

At and for about five weeks prior to the time of the accident, plaintiff had been employed by the defendant in defendant's home in this city, exclusively as a nursery governess. The house, in which defendant had resided for several years, was of the English basement type and four stories in height. Plaintiff's duties were chiefly confined to the third floor, where she slept in proximity to the children, and in the front part of this floor was located defendant's sleeping apartment. There were two stairways leading from the third to the fourth floor; one stairway being in about the center of the house and the other in the rear. In the front part of the fourth floor were playrooms for the children, but plaintiff always had used the center stairway in gaining access thereto. The dumb-waiter was in an inclosed shaft extending from the first to the fourth floor, and was equipped on the different floors with ordinary doors, 'just the same as any other door leading into a room. ' Plaintiff knew that between the door on the third floor and the shaft was a gate that extended across the opening, but prior to the accident she had never used the rear stairway on the fourth floor, and there is no evidence tending to show that she knew the location of the dumb-waiter on that floor. Indeed, the evidence fails to show plaintiff even knew that the dumb-waiter extended to the fourth floor. In this connection defendant testified that plaintiff 'had nothing to do with the elevator whatsoever. ' The door to the dumb-waiter shaft on the fourth floor was about three feet distant from and directly opposite the top step or landing of the back stairway, and, unlike the third floor, was equipped with no gate. The door on this fourth floor was supplied with an ordinary knob, and had a lock and key; the key always being left in the lock.

On the night of the accident defendant had been out and returned home some time between 10 and 11 o'clock. Plaintiff was in the sewing room, where she had been all the evening. This room was between the front stairway and defendant's room. According to plaintiff's testimony, which does not differ materially from that of defendant, after some casual remarks, plaintiff inquired of defendant, 'Can I do anything for you? ' Defendant replied, 'Well, I have been ringing and ringing and ringing. Could you 'call or find' Hugh ' (the second butler). Plaintiff then asked, 'Where do you think he would be? ' and defendant answered, 'He is not downstairs; he may be in his room. ' Plaintiff responded that she would see what she could do 'and went to call the man'; defendant going to her room. On this point defendant testified that plaintiff, when defendant came in, inquired if there was anything plaintiff could do for her, to which defendant replied that all the lights were on; that she had been ringing the bell, but no one answered. She then inquired of plaintiff if plaintiff knew where Hugh was. Defendant further testified as follows:

'Plaintiff answered that she did not, and defendant said, 'Will you be good enough to call him?' Plaintiff said, 'I will go and get him;' and witness replied, 'Don't bother to go; just call. As he is not in the pantry, and not downstairs, he may be in his room."

The man's room was in the servant's quarters, in the rear part of the fourth floor. Plaintiff had not been in the back part of the house on the fourth floor, 'and there was a door that shut it off' from the other part of that floor. She 'did not know actually where his (Hugh's) room was,' but did know that the help slept on the fourth floor, and 'had seen them come up and down the back stairway. ' Plaintiff went to this stairway, opened the swinging door, and called to Hugh several times. Receiving no response, she proceeded up the stairway, which was in darkness, and when she reached the top stair (but a step from the elevator shaft door) endeavored to find an electric bulb, and, while doing so, continued to call without result. Her hand came in contact with a door handle or knob; the door being ajar. She opened the door, and, as she took a step forward, called again, and fell down the dumb-waiter shaft, receiving serious and permanent injuries. As she expressed it:

'I had trodden into the dumb-waiter, which I had not realized was there.'

The evidence for the defendant was to the effect that she had cautioned plaintiff to keep the children away from the elevator on the third floor; 'that plaintiff had no duties to perform in connection with the fourth floor, except at the front of the house, where the playrooms were, and plaintiff made use of the front staircase to get up and down, to and from the playrooms. ' The assistant butler, Hugh, in an affidavit received in evidence by agreement of counsel, because he was out of the jurisdiction, stated that it was solely his duty to operate the elevator to or at the fourth floor, and that, in accordance with defendant's instructions, 'all doors leading into the elevator shaft were kept locked when not in use'; that the last time he used the elevator at the fourth floor, prior to the accident, he locked the door, and left the key in the lock, as usual.

The theory of the declaration is that it was defendant's duty to provide plaintiff with a reasonably safe place in which to work; that there was a breach of this duty, in that the dumb-waiter shaft on the fourth floor was not properly guarded; and that, while acting within the scope of her employment and in the exercise of reasonable care, she was injured in the manner stated.

The first assignment of error relates to the action of the court in overruling defendant's motion for a directed verdict at the close of all the testimony. The jury was justified in finding that the plaintiff, at the moment of the accident, was attempting to carry out her employer's instructions, and was acting within the scope of those instructions; that is, within the scope of her employment, as alleged in the declaration. Defendant repeatedly had rung for the butler, and, when she made known to the plaintiff that he was not downstairs, but might be in his room, and that plaintiff was to 'call or find' him (for such was the testimony of the plaintiff, which the jury, of course, had a right to accept), plaintiff clearly was justified in pursuing the course she adopted. Indeed, if we adopt defendant's recollection of the occurrence, there is no change in the result; for the plaintiff still was justified in interpreting the language used to mean that, if unable to locate the butler by calling to him, she was to proceed to his room, for the last words of the defendant, according to defendant's testimony, were, 'He may be in his room.'

It is conceded that it was the duty of the defendant to provide for the plaintiff reasonably safe surroundings; that is, a reasonably safe place in which to work. Carter v. McDermott, 29 App.D.C. 145, 10 L.R.A.(N.S.) 1103, 10 Ann.Cas. 601. But it is insisted that there was no breach of that duty. The views of other courts, in cases involving similar conditions, will be helpful. In Roth v. Buettell Bros. Co., 142 Iowa, 212, 119 N.W. 166, the ground of negligence charged was the omission to keep in repair the latch to the door of an elevator shaft and the bar extending horizontally across the entrance thereto. Plaintiff had been employed in the building for nine years, was a foreman, and familiar with surrounding conditions. The day was stormy, and it was so dark in the elevator shaft that objects could not be observed distinctly. As he approached, he noticed that the door to the elevator was open, and that the bar was not in place, 'and supposing he saw the framework of the elevator, stepped in, and fell down the shaft. ' The court ruled that it was a question for the jury 'whether defendant had exercised reasonable care for the protection of its employes against injury which might result from the absence of barriers to the shaft.'

In Foren v. Rodick, 90 Me. 276, 38 A. 175, plaintiff sustained injuries by falling into the cellar of a block, the first floor of which was occupied by stores, and the second floor by offices. Near the double door entrance to the staircase leading to the offices was a single door opening from the sidewalk to the cellar. Plaintiff, although she previously had visited the office to which she was going, by mistake opened the cellar door, stepped forward, and fell into the cellar; there being only a ladder leading down. The court said:

'The conclusion is irresistible in the case at bar that the maintenance of the unfastened door and unguarded entrance to the cellar, in close proximity to the main entrance to the second floor of the building, without any sign or warning to distinguish the one from the other, and the attachment of the professional sign of a tenant to the building in such a position between the two doors as to leave it uncertain to which entrance it was designed to give direction, rendered the conditions connected with the approach to the main entrance of the building misleading and dangerous. In this respect the building was improperly constructed and negligently maintained.'

Hayward v. Merrill, 94 Ill. 349, 34...