Klein v. Montgomery Ward & Co.

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; ROSSMAN
• Citation: Klein v. Montgomery Ward & Co., 384 P.2d 978, 235 Or. 315 (Or. 1963)
• Decision Date: 05 September 1963
• Parties: Emeline B. KLEIN, Appellant, v. MONTGOMERY WARD & CO., a corporation, Respondent.

Page 978

384 P.2d 978

235 Or. 315

Emeline B. KLEIN, Appellant, v. MONTGOMERY WARD & CO., a corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 1, 1963.

Decided Sept. 5, 1963.

Carl R. Neil, Portland, argued the cause for appellant. On the brief were Carl R. Neil, Jerard S. Weigler, Krause, Lindsay & Nahstoll, Portland.

A. Allan Franzke, Portland, argued the cause for respondent. On the brief were A. Allan Franzke, James F. Spiekerman, Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN, and DENECKE, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Emeline B. Klein, from a judgment which the circuit court entered in favor of the defendant, Montgomery Ward & Co. The action which ended in that manner was instituted by the plaintiff to recover damages for an injury which she suffered when she fell down a flight of four steps in an entrance way of the defendant's Portland store. The challenged judgment was entered after (1) the defendant had moved unsuccessfully for a directed verdict; (2) the jury had returned a verdict for the plaintiff; and (3) the defendant's motion for the entry of judgment in its favor, notwithstanding the verdict, had been allowed.

The plaintiff presents two assignments of error. The first challenges the ruling which entered judgment in the defendant's favor notwithstanding the verdict, and the second questions a ruling which sustained the defendant's objections to the reception in evidence of a Portland ordinance which provides in the instances to which it is applicable that handrails must be placed not farther apart than 66 inches upon staircases that are 88 inches or more in width.

The complaint made several charges of negligence but only two of them were submitted to the jury. Appellant's (plaintiff's) brief states, 'The Court, however, submitted to the jury only two of plaintiff's specifications of negligence, relating to the condition of the step and, under the common law, the lack of a middle handrail.' The plaintiff does not contend that error was committed when the other specifications were not submitted to the jury.

November 19, 1960 the plaintiff and her husband drove their automobile to the defendant's store where the plaintiff intended to do some shopping. After the plaintiff's husband had parked the car in the defendant's parking lot, the two proceeded to enter the store through its easterly entrance. The latter was slightly more than 30 feet broad and consisted of a series of seven doors. When a customer had gone through one of the doors, he was in an area 30 feet long and 42 inches broad. We will deem it a vestibule. If after the customer had walked ahead 42 inches, after going through the door, he had crossed the vestibule and was upon the upper of the flight of four steps. When he descended the steps, he was upon the store's first floor. The plaintiff immediately before accident had taken, in part, the course just described; that is she had gone through one of the doors, had walked ahead 42 inches and had come to the top of the four steps. There something went wrong and she fell down the stairs.

Upon direct examination by her attorney, the plaintiff testified that she did not know what caused her to fall. Her testimony was:

'Q. Well, do you specifically know what caused you to fall?

'A. I couldn't say. All I know is my foot slipped off the step and I was down there.'

The plaintiff testified that her health had been good. She operated a small coffee shop. At the time of her mishap the plaintiff was wearing 'walking shoes,' so she swore, and added that they had 'a full heel.'

On each side of the broad vestibule area and staircase, there was a short wall at right angles to the stairs. Fastened into each wall was a handrail for the use of anyone who went up or down the stairs at that point. Besides those two handrails there were four more in this flight of steps. They occurred at intervals of 81 inches.

The plaintiff did not enter the store through a door that was adjacent to the vestibule walls, but through a door which was near the center of the entrance. She testified that she had been in the store many times, but had used this entrance 'seldom.'

The door through which the plaintiff entered was a double door. Its width was six feet. Each of its two component doors was, therefore, three feet wide. The two component doors swung open from their middle, and opened outwardly. Each was fastened on its far side by hinges to a column-like form that stood immediately adjacent to that side of the door, and separated the latter from the next set of doors.

On each side of the double door through which the plaintiff entered there was one of the handrails that we mentioned. The handrail was fastened at its upper end to the column that stood adjacent to the door. The handrail was about 30 inches above the vestibule floor. It extended from the column, parallel to the vestibule floor until it reached a point above the upper step, where it bent downward at the same angle of the steps until it was above the lowest of the four steps. There it turned directly downward and terminated in that step.

The distance between the handrails which stood at the sides of the door through which the plaintiff entered the store was 81 inches. That, as we have said, was the distance that separated all of the handrails. Thus when the plaintiff passed through the door there was a handrail to right and another to her left. The plaintiff did not mention through which of the two doors she came. However, she testified that neither handrail was within reach. We have mentioned that the double door through which the plaintiff entered opened from its middle.

The plaintiff's husband held the door open while she walked through. Observation teaches that one who holds a double door open for another, holds open only one of its two component parts. Therefore, no one enters through the center of a double door. He enters to the right or to the left of the center, depending upon which of the two component doors was open. Since the total distance between the handrails was 81 inches, the plaintiff upon entering through the double door must have been within arm length of a handrail. Had she moved slightly to the right or to the left she could have grasped a handrail. She made no effort to do so. She knew of their presence. She and her husband were the only people in the entrance way when she fell.

In the following testimony the plaintiff described her fall:

'A. Well, my husband opened the door and I went to step off of the top step to go down these stairs, and I remember my foot slipping over the * * * like this (demonstrating) * * * and the next thing I knew I was down at the bottom of the stairs, all crumpled up.

'Q. Well do, you specifically know what caused you to fall?

'A. I couldn't say. All I know is my foot slipped off of that step and I was down there. It just happened so fast that actually I didn't realize until I was down there what had happened to me.

* * *

* * *

'Q. What was the condition of your clothes?

'A. Well, my jacket, * * * like I say, I had never worn my white jacket before; it was the first time I had ever worn it, and it was wet and muddy from down there on the floor, and my black skirt was a mess from mud and water where I had fell.'

November 19, 1960, the day of the accident, was a very rainy day. As we noticed through quotation of the plaintiff's testimony her clothing was 'wet and muddy' after the fall. We observe, however that after the plaintiff had used those words she added 'from down there on the floor.' Possibly she meant that the water and mud were picked up by her garments 'from down there on the floor.' The plaintiff, who is the only one who described the accident and its incidents, did not testify that there was any water, mud or other substance on the steps or the floor of the vestibule.

She testified:

'I know when I came in the store I was watching where I was going and I knew I had those steps to go down and I just went to step down and the next thing I knew I was down at the bottom. * * *

'Q. Well, you say you were watching where you were going. Did you at any time look there where your foot was when you fell?

'A. I glanced.

'Q. You didn't see anything there that alarmed you?

'A. I don't remember of anything--I just don't remember of anything.'

The plaintiff's testimony just quoted warrants a belief that she noticed no water, mud or other material upon the steps or upon the floor of the vestibule. It will be noticed that although she 'glanced' at the place upon the steps where her foot was when she fell she noticed no foreign material there. We have stated that no one else testified upon this subject. The defendant presented no evidence. The plaintiff's husband did not testify. Accordingly, if the water and mud that were upon the plaintiff's garments after the fall were picked up 'from down there on the floor' there is no evidence in the record that the steps, especially not the one upon which her fall started, contained any water, mud or other substance. But if the water and mud were picked up from the steps, the record does not indicate how long they were there or that the defendant knew of their presence.

The edge of each step in the flight of four was protected by a metal strip, which Charles G. Davis, an architect who testified for the plaintiff, termed an 'extruded steel nosing.' Mr. Davis said that the 'nosing' was three inches wide and that its purpose was 'to provide a wearing as well as a non-slip surface.' He thought that water upon the nosing could cause it to become slippery. Mr. Davis had not seen the entranceway and the steps until a year and a half after the plaintiff's fall. He testified that on the day of his visit to the defendant's establishment the metal strip was 'somewhat worn.' He did not mention the degree of...