Kelly v. Theo. Hamm Brewing Company
| Decision Date | 28 June 1918 |
| Docket Number | 20,863 |
| Parties | JAMES E. KELLY v. THEO. HAMM BREWING COMPANY; MATILDA KELLY v. SAME |
| Court | Minnesota Supreme Court |
Two actions in the district court for Ramsey county, one by the wife to recover $10,000 for inability to carry on her business on account of her injuries; the other by the husband to recover $5,000 general damages and $1,570 special damages for loss of services and companionship of his wife. The cases were tried before Michael, J., who granted defendant's motions for directed verdicts in its favor. From an order denying their motions for a new trial, plaintiffs appealed. Affirmed.
Hatchway guard -- statute construed -- "store" includes saloon.
1. Section 3873, G.S. 1913, requiring every hoistway, elevator well and hatchway in any factory, mill, workshop, storehouse or store to be guarded and protected by substantial barriers held to apply to a building wherein is maintained a hatchway or trapdoor as a means of access to the basement, though the business carried on therein is that of the ordinary saloon there being present upon the premises employees for whose protection the statute was enacted. The building is a "store" within the meaning of the statute.
Master and servant -- action for negligence -- violation of statute.
2. The proprietor of such place who is injured by falling into a trap door located on the main floor thereof, which should have been guarded as required by the statute, the door being raised and left open by a third person, is not entitled to recover against such person though the act of leaving the door open was one of negligence, for the failure of compliance with the statute is the proximate cause of the injury.
John C. De Courcy and Martin J. Hurley, for appellants.
Barrows & Stewart, for respondent.
Plaintiffs in these two actions are husband and wife. The wife received certain injuries to her person by reason of the alleged negligence of defendant and the action in her name was brought to recover damages therefor. The action by the husband was brought to recover for loss of companionship and the expense incurred in the care and medical attention of the wife pending her recovery. The actions were tried together in the court below, at the conclusion of which verdicts were directed for defendant. Plaintiffs joined in an appeal from an order denying a new trial.
It appears from the pleadings and evidence that at the time Mrs. Kelly received her injuries, namely, on April 1, 1915, she was engaged in her own right in the retail liquor business upon premises occupied by her at 335 Rice Street, in the city of St. Paul, and had been so engaged at the same place during the preceding 10 or 12 years. Though on the trial she attempted to show that she had parted with her interest in the business some time prior to the accident which resulted in the injury complained of, she was not permitted to dispute the allegations of her complaint affirmatively alleging the fact, and the trial proceeded on the allegation that at the time of the injury she was the owner of the business. The case must be so treated in this court. As such owner and dealer she received her weekly supply of beer from defendant, and the quantity ordered was delivered upon the premises by one of its servants. There was in the bar-room a passageway leading to the rear of the building, in which and in a dimly lighted part of the room was a trapdoor by which access was had to the basement. When beer was brought to the premises for delivery it was necessary for defendant's servant in charge of the work to go through this trapdoor to the basement, there unfasten and open an outer door, through which the beer would be taken into the building. When a particular delivery was completed the servant would retrace his steps, returning through the trapdoor to the bar-room, and thence on in pursuit of his employment elsewhere. The passageway in which the trapdoor was so located was used in going to and from a toilet in the rear of the room, and also in waiting upon rear-door beer customers. There were no guards or barriers around the trapdoor and by reason of the dimly lighted passageway it was when open a source of danger to those going to or from the rear of the building. Such was the situation and condition at the time in question, and, as we understand the matter, the condition that had existed during all the time of plaintiff's occupancy of the premises.
At the time Mrs. Kelly was injured a delivery of beer was being made by defendant and the usual course was pursued by its servant. He left the trapdoor open, as he entered the basement, and when going down the passageway to the rear door, either when starting for her home or to wait on a back door customer Mrs. Kelly fell into the open door...
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