Girard v. Kabatznick
| Decision Date | 09 January 1942 |
| Citation | 24 A.2d 257,128 Conn. 520 |
| Court | Connecticut Supreme Court |
| Parties | GIRARD et al. v. KABATZNICK et al. |
Appeal from Superior Court, New Haven County; Baldwin, Judge.
Action by Archie L. Girard and another against Minnie Kabatznick, administratrix, and the Great Atlantic & Pacific Tea Company, for personal injuries to named plaintiff as alleged result of defendant's negligence, tried to the court. From a judgment for plaintiffs against defendant administratrix, she appeals, and from a judgment for defendant tea company, named plaintiff appeals.
No error.
Before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.
J. Warren Upson and William J. Secor, Jr., both of Waterbury, for appellant Kabatznick.
Vincent A. Miller and William F. Jones, Jr., both of Waterbury, for appellant and appellee Girard.
J. Stephen Knight, of New Haven, for appellee Simmons Co.
Martin E. Gormley, of New Haven, for appellee Great Atlantic & Pacific Tea Co.
Archie L. Girard was a truck driver employed by the Simmons Company. He was injured by a fall into an elevator pit in a three story block controlled by Minnie Kabatznick, administratrix, doing business as the Kabatznick Furniture Company in Middletown. He sued her and joined as defendant the Great Atlantic & Pacific Tea Company which leased a portion of the basement and first floor of the building in which the injury occurred. The Simmons Company paid compensation to Girard and was joined as plaintiff upon its application under the statute, General Statutes, § 5231. The trial was to the court and resuited in a judgment for the plaintiffs against the named defendant and in favor of the Tea Company.
The finding is as follows: The building in which the injury occurred was of three stories with a basement. The portion of the basement and first floor leased to the Tea Company was marked by partitions. All of the rest of the building was occupied by the named defendant except for a small portion of floor space adjoining the elevator shaft on the basement and first floors which was used in common by both. The elevator shaft was at the rear. It was entirely enclosed and doors were provided at the basement, at each of the three floors and, on the opposite side, at a loading platform on the first floor. These doors were so designed that they could not be opened from the outside unless the elevator was at the same floor level. On the day of the accident this safety device was, and for a long time previously had been, out of order.
Adjoining the main building was a shed. The rear door of the Tea Company store opened into it and in the shed adjacent to this door was a loading platform nine feet by four feet, and three and one-half feet high. A sliding door on this platform opened into the elevator shaft. There was a push button on the right door jamb, rather high up, which was connected with a bell in the furniture store but there was, at the time of the accident, no danger sign or other indication of the presence of an elevator shaft. The sill between the door and the shaft was twenty-two inches wide. The shed was used constantly by the named defendant for the receipt and delivery of merchandise and as a garage for her truck. A part was also used by the Tea Company for storage. Shortly after the Tea Company leased its store, it used this shed to receive merchandise on not more than three occasions. It proved inconvenient for this purpose and thereafter deliveries were made to the Main Street or front entrance. The elevator was used by the Tea Company to carry freight to and from the basement, but was entered from within the Tea Company store. This use was for the most part in the morning, before the furniture store opened. On the infrequent occasions when employees of the Tea Company wanted to use the elevator during business hours, they did so under permission from the named defendant. The latter controlled the mechanism, located in a penthouse above the third floor, and the power used in the operation of the elevator, and paid the entire cost of power, repairs and maintenance. The elevator was registered with the labor department as that of the named defendant. While the portion of the first floor occupied by the elevator was within the limits leased to the Tea Company, the elevator is not mentioned in the lease. In a rider, attached to the lease, it is provided that the Tea Company can make use of the appurtenances of the leased premises.
The accident happened on February 18, 1939. That morning the Tea Company had used the elevator for about an hour. Later it had been used by an employee of the named defendant, who eventually left it at the second floor and went to dinner. He also left the Kabatznick truck backed up to the loading platform and the door at the loading platform opening into the elevator shaft open a few inches.
Girard had been a truck driver and delivery man for many years but had never before made a delivery at Kabatznick's. On the day in question he was directed to deliver to her a double bed spring mattress. He drove to the shed and found the space very cramped because of the presence of the Kabatznick truck. He finally got the mattress onto the loading platform and opened the door into the Tea Company store. Seeing that it was a grocery store and that everyone was busy he climbed onto the loading platform, observed the sliding door partly open and, supposing it gave entrance to a receiving room, pushed it a little more open and stepping forward fell into the shaft to its bottom, sustaining severe injuries. While it was a bright day, the absence of windows in the walls and the presence of the truck, practically filling the shed, made it quite dark inside.
The attack on the finding by both appellants is fairly extensive but no change can be made which would affect the merits of the appeals.
The trial court visited and inspected the premises twice. It concluded that Girard was in the exercise of due care, that his injuries were caused by the negligence of the named defendant and that the Tea Company neither had nor exercised any control over the maintenance or use of the elevator, but that its use by the Tea Company was incidental or permissive only. The named defendant claims that the plaintiff exceeded the limits of the invitation extended to him as a business visitor so that she is not liable for the injuries sustained and that he is barred by his own contributory negligence. Girard claims that the Tea Company should have been held liable with the named defenda...
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Morin v. Bell Court Condominium Ass'n
...upon the property of another is a question of fact. Dickau v. Rafala, 141 Conn. 121, 124, 104 A.2d 214 [1954]; Girard v. Kabatznick, 128 Conn. 520, 525, 24 A.2d 257 [1942]; Knapp v. Connecticut Theatrical Corporation, 122 Conn. 413, 417, 190 A. 291 [1937]. Where, however, the facts essentia......
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Roberts v. Rosenblatt
...injury while upon the property of another is a question of fact. Dickau v. Rafala, 141 Conn. 121, 124, 104 A.2d 214; Girard v. Kabatznick, 128 Conn. 520, 525, 24 A.2d 257; Knapp v. Connecticut Theatrical Corporation, 122 Conn. 413, 417, 190 A. 291. Where, however, the facts essential to the......
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