Holm v. Investment & Securities Co., 26899.

Decision Date24 May 1938
Docket Number26899.
Citation195 Wash. 52,79 P.2d 708
CourtWashington Supreme Court
PartiesHOLM v. INVESTMENT & SECURITIES CO. et al.

Department 1.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Nels Holm against the Investment & Securities Company, a corporation, and C. Wesley Fike for injuries sustained in fall through open door of an unguarded freight elevator shaft. Verdict was directed for the first named defendant and, from a verdict and judgment for the plaintiff against second named defendant, C. Wesley Fike appeals.

Affirmed.

Edge &amp Wilson and Roy C. Fox, all of Spokane, for appellant.

Robertson & Smith, of Spokane, for respondent.

HOLCOMB Justice.

This action was instituted to recover damages for personal injuries sustained by respondent occasioned by his falling through the open door of an unguarded freight elevator shaft. The parties named as defendants appeared separately. A directed verdict resulted for The Investment and Securities Company, and a verdict and judgment was entered against C Wesley Fike, who appeals from that judgment.

The Investment and Securities Company, a corporation, which will hereinafter be referred to as the 'corporation,' is the owner of the Fairmont hotel, a six story brick building constructed in 1906 situated on the south side of Riverside Avenue between Washington street and Bernard street in the city of Spokane. The lobby of this hotel is at the north end, fronts on Riverside Avenue, and from it a passenger elevator takes passengers to the various floors. Near the south end of the building is the freight elevator involved here. Only the houseman, the engineer, and the laundry man had authority to use this elevator.

The corporation leased all of the third, fourth, fifth, and sixth floors of this building to appellant for a term commencing March 15, 1935, and expiring December 31, 1935. The lease was extended from time to time after its expiration for approximately six month-periods and was in effect under such extensions during the month of August, 1936. By the terms of this lease the lessee agreed: 'To save the lessor harmless from all loss or damage, or claim of damage, on account of the condition of the premises.'

Appellant carried on a general hotel business, renting rooms to the public by the day, week, and month.

August 23, 1936, one Miss David was residing at Room 421 in the Fairmont hotel, and had been living there for about a month. One Edward Frye visited Miss David at her hotel room on that afternoon, and at Frye's request Miss David telephoned respondent, told him Frye was visiting her, and invited him to come over to her room and bring a Mrs. Johnson. These four individuals had formerly resided at Potlatch, Idaho, where they had become acquainted. Respondent had come to Spokane in the middle of July, 1936.

Following the telephone conversation, respondent called for Mrs. Johnson, but she was not at home, and he walked to the Fairmont hotel, arriving there at about 6:30 P. M. He advised the elevator operator that he wanted to go to room 421, and after taking respondent to the fourth floor, the operator directed him to the room designated, which is situated at the extreme southern end of the building, facing Sprague Avenue.

There was in this room something less than half a pint of liquor, and upon respondent's arrival Frye invited him to have a drink. Respondent had one drink and left about seven o'clock to find Mrs. Johnson, agreeing to return about eight o'clock, when definite plans for the evening were to be made.

The freight elevator was about ten feet from the door of Miss David's room, and the stairway was about twenty feet away.

Respondent walked down the stairway, located on the southern end of the building, from the fourth to the third floor, and noticing from the head of the stairway on the third floor that the second floor was dark, he turned around, observed the freight elevator in question, and decided to avail himself of the egress afforded by it. This elevator was surrounded by an iron grill work, and had no sign upon it to indicate that it was a freight elevator.

On the day of the accident the sun had set at 6:49 P. M. On the ceiling between the stairway and the elevator there was a light fixture. The testimony is not entirely in harmony in regard to the adequacy of the light at that time and place. Respondent testified that he could see no light burning on the third floor, and that it was 'rather dark,' 'not completely dark,' and 'about half dark.'

As to his departure from the building respondent testified that he walked out of the room, took the first stairway he saw, walked down two short flights of stairs, saw the elevator, and was going to proceed down, but he looked down and it seemed it was rather dark on the next floor as far as he could see; he glanced over towards the elevator, happened to see that door open and thought he might as well step into the elevator as long as it was there. He went over to the elevator, and that is the last thing he remembered.

Respondent fell to the bottom of the freight elevator shaft, and there were no eye witnesses present. His cries attracted a police officer who found him at the bottom of the shaft on the morning of August 24, between 5:00 and 5:30 A. M. From this fall respondent alleges that he suffered extreme pain and severe injuries.

The complaint alleged that appellant had negligently failed to provide the entrance of the elevator with an automatic or self-closing gate, had negligently and carelessly permitted the elevator to be left open and the shaft to remain unguarded, and the hallway on the third floor was insufficiently lighted; that by reason of this negligence respondent fell into the shaft thereby sustaining severe personal injuries; that at the time of the injury respondent was a strong, healthy, and able-bodied man employed as a lumber worker earning and capable of earning a minimum of five dollars per day; and that respondent has been prevented from following his occupation, and will be prevented from performing any form of manual labor.

The corporation and appellant demurred to the complaint and the demurrers were overruled.

Appellant answered, admitting respondent fell into the elevator shaft, but denied the remaining material allegations of the complaint, and set up as an affirmative defense that if respondent sustained any injuries or damages the same were caused by his own negligence. Respondent replied, denying the affirmative defense set forth in the answer.

At the conclusion of respondent's case appellant challenged the sufficiency of the evidence to make a case for the jury, and moved the court to dismiss the action and enter judgment as a matter of law in his favor.

The corporation moved that judgment of dismissal, or, in the alternative, a nonsuit be entered. Both of these motions were denied.

At the conclusion of all the evidence the corporation challenged the sufficiency of the evidence to warrant the submission of the case to the jury with respect to it, and moved that the jury be instructed to return a verdict in its favor for several reasons.

Appellant, at that time, also moved the court to enter judgment as a matter of law in his favor or, in the alternative, to direct the jury to return a verdict in his favor because no actionable negligence in regard to him was shown by the evidence; because the contributory negligence of respondent is sufficient to preclude his recovery as a matter of law; and because the relationship of appellant, by reason of his contractual occupancy, is such as to relieve him of liability.

The motion of the corporation for a directed verdict was granted, and the motion of appellant was denied.

Judgment was entered against appellant. Thereafter motions for judgment n. o. v. and for a new trial were made and denied, and this appeal taken.

A number of assignments of error are presented for consideration.

The first three assignments of error relate to the sufficiency of the evidence to make a case for the jury. Such a challenge requires that the evidence be interpreted most strongly against appellant and in the light most favorable to respondent. Ball v. Pacific Coast Railroad Co., 182 Wash. 221, 46 P.2d 391; Buttnick v. J. & M., Inc., 186 Wash. 658, 59 P.2d 750.

The testimony shows that a number of people have stopped and waited at the freight elevator, expecting and...

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