Johnson v. Mau

• Decision Date: 27 April 1931
• Docket Number: 5907
• Citation: 236 N.W. 472,60 N.D. 757
• Court: North Dakota Supreme Court

236 N.W. 472

60 N.D. 757

HENRY JOHNSON, Respondent, v. FRED E. MAU, Appellant

No. 5907

Supreme Court of North Dakota

April 27, 1931

Rehearing Denied May 19, 1931.

Appeal from the order of the District Court of Ransom County denying defendant's motion for judgment notwithstanding the verdict or for a new trial, Hutchinson, J.

Reversed and dismissed.

Kvello & Adams, for appellant.

When but one conclusion can reasonably be drawn from conceded facts the question of negligence is a question of law. Ferm v. Great N.R. Co. 53 N.D. 543, 207 N.W. 39; Costello v. Farmers Bank, 34 N.D. 131, 157 N.W. 982.

"Darkness is nature's own warning to arouse the natural instinct of self protection, the first law of nature." Central Pub. House v. Flury (Ohio) 157 N.E. 794.

The duty of exercising reasonable care even to an invitee to keep the premises safe does not extend to such parts of a building as are used for the private purposes of the owner. 33 A.L.R 228, note; Corbett v. Spanos (Cal.) 173 P. 769; Menteer v. Skalzo Fruit Co. (Mo.) 144 S.W. 833; Keeran v. Spurgeon Co. (Iowa) 191 N.W. 99, 27 A.L.R. 579.

In ordinary civil actions a fact at issue is sufficiently proved by a preponderance of the evidence. 38 Cyc. 755; 25 C.J. 12, 14.

"Persons who stray about other people's premises at their own will must look out for their safety in dangerous and unsafe places, or themselves suffer the consequences." Bedell v. Berkey, 76 Mich. 435, 15 Am. St. Rep. 370; Baltimore & O.R. Co. v. Goodman, 12 L. ed. 167, 41 A.L.R. 405.

Charles G. Bangert, for respondent.

". . . An owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils." 20 R.C.L. 55, 57, 66 and 67; Reis v. Abeles, L.R.A.1917E, 747; McCrum v. Weil & Co. 84 N.W. 282; Wilsey v. Jewett Bros. & Co. 98 N.W. 114; Reid v. Linck, 35 A. 849.

Burke, J. Christianson, Ch. J., and Birdzell, Nuessle, and Burr, JJ., concur.

OPINION

BURKE

This is an action for personal injury. At the close of plaintiff's testimony there was a motion for a directed verdict which was overruled. At the close of all of the testimony there was a motion for a directed verdict and also a motion to dismiss the case on the ground of failure of proof, which motions were overruled and after verdict the defendant moved for judgment notwithstanding the verdict or for a new trial, which motion was overruled and the defendant appeals from the order of the district court denying defendant's motion for judgment notwithstanding the verdict or for a new trial.

Defendant owns and operates a garage at Enderlin, North Dakota, fifty by seventy-five feet. The office is in the northwest corner of the building and there is a freight elevator diagonally across in the southeast corner of the building. On the west side and adjacent to the south end there is a door through which automobiles pass, a distance of thirty feet to the elevator where they are elevated to the second floor for repair. Sometimes the owner of an automobile brought there for repair will drive right into the garage through this door on the west side and on to the elevator, and frequently will stay in the car until it reaches the second floor. This elevator is used for no other purpose except to elevate cars to the second floor for repair and it is always run or operated by the employees at the garage. There are two, two-hundred candle-power electric lights, each with reflectors, for lighting the garage at night. They are about in the center of the garage east and west and one light is from twenty-five to thirty feet from the south end of the garage. The elevator in the garage is enclosed on three sides and on the west end of the elevator and facing the door which was thirty feet away there are double doors and on each side of each door there was a placard upon which appeared in one line "Danger," in another line "Keep Out," and in a third line "Elevator Shaft."

The plaintiff had made arrangements with the defendant for the use of a Ford car and he came to the garage in the evening and found the employees at the garage putting gas and oil in the car. He said:

"One of the men brought the car up there and put in gas and oil -- in front of the garage, . . . and I was getting tired of waiting and I went up to one of the men and told him to tell me where the water is -- I will get it myself, and he said to go back in the corner of the garage. . . . There was another fellow there fixing a car in the center of the garage -- I said, where's the water -- and he said back in the back, in the corner of the garage.

"Q. Now, you walked up to the elevator shaft, was there a light in the building? A. No, not in the back -- it was light in front. . . . There was no door there that I could see -- I didn't pay no attention to the door -- that was open. . . . I found out afterwards it was a door. I entered the building from the front door; I first went to the corner and couldn't find the water." (This corner was marked by witness with an "X." It was thirty feet from the elevator and is the place to which he was directed and where the water was.) "The rear door on the east side I noticed was open, swung up against the wall. I then walked about half way to the elevator shaft and I said it must be over here towards the elevator shaft. I did not see any sign on the doors."

On cross-examination he testified:

"I had never been in the back part of the garage at any time previous and didn't know where the water was. It wasn't really dark -- it was light in front -- but it was quite dark in the back. They told me the water was in the corner of the garage. . . . I didn't see no sign of any way of getting water there. . . . And then I went looking for it myself. I went across the north end of the garage approximately thirty feet and that is where I fell in the hole. . . . I don't remember whether it was dark that night. So far as I know I don't remember how many lights there were in the garage.

"Q. Well, there were at least two? A. Yes.

"Q. About where you have marked the word 'light' on this exhibit one? A. Yes.

"Q. Now, where were those lights -- in the floor, ceiling or wall? A. In the ceiling.

"Q. In the ceiling -- yes -- about how high was the ceiling -- would you estimate? A. Oh I don't know.

"Q. Ten feet -- twelve feet -- fifteen feet -- would you guess? A. About -- between eight and ten, I think. . . . I was in a hurry that night; my children wanted to go to the skating rink and I said, if you'll tell me where the water is I'll get it myself. I took up the bucket and went for the water. One of the men was fixing a car inside. I asked him where the water was. . . . I couldn't see no sign of water there -- I wanted to make sure that I found out where the water was. I says, where's the water? And the other man told me where it was. He was about in the center of the garage. I had no trouble seeing him or the car. He says, in the corner back in the garage. . . . I went back in the corner which is marked "X" in exhibit one. When I talked with Maurice (the employee who was repairing a tire) I could see the back of the building. I could see the door over near.

"Q. No trouble seeing that, was there? A. No.

"Q. And you could see the back of the garage? A. Yes. . . . I could see the partition over here on the north side, where the elevator shaft is; didn't see no door in the elevator side of the garage. When I couldn't find the water I thought maybe he meant the other corner, so I walked across along the end of the garage. . . .

"Q. Yes -- and so you walked across along the end of the garage -- until you fell in the hole? A. I walked up to there.

"Q. Did you stop? A. I stopped and looked at that -- what I thought was the pipes.

"Q. And did you see a door there at all? A. There wasn't no door there.

"Q. No door at all? A. I didn't pay any attention to a door. I didn't pay no attention to a door at that time. . . . But I had seen the partition at the north end of the elevator shaft. I seen it then, and I saw the back end of the garage. . . .

"Q. Now, what did you think was between this partition and the back end of the garage? A. Well, it looked to me like it was -- the place where he keeps oil and water.

"Q. Yes -- pitch dark in there, wasn't it? A. Yes.

"Q. And you went right into it, just the same? A. I thought there was a floor, in there. . . . I didn't see any sign up -- why there should be any reason why it should be danger. . . . It was dark in back; I seen the sign after the accident on the door. It was on that side of the door (indicating to the right). I didn't see why I had to pay any attention to what was there in that corner. I wasn't familiar back in there. . . ."

It is the contention of appellant that plaintiff's testimony shows affirmatively that he was guilty of contributory negligence and cannot recover. From his testimony it appears that he went to the garage on the evening of the accident that an employee had the car which plaintiff was to use in front of the garage; that plaintiff was in very much of a hurry and while the defendant's employee was putting gas and oil in the car the plaintiff volunteered to go and get water asking defendant's employee where to find it. He apparently got the proper instructions, picked up the bucket and started for the water going in through the front door. In about the center of the garage he found another employee fixing a tire on a machine; he asked him where to find the water and was directed to a corner of the garage. He could see at that time from the center of the garage to the back end of the garage. He saw the rear door which was...