Lewis v. Jake's Famous Crawfish, Inc.

• Decision Date: 09 October 1934
• Citation: 148 Or. 340,36 P.2d 352
• Parties: LEWIS v. JAKE'S FAMOUS CRAWFISH, Inc., et al.
• Court: Oregon Supreme Court

36 P.2d 352

148 Or. 340

LEWIS v. JAKE'S FAMOUS CRAWFISH, Inc., et al.

Supreme Court of Oregon

October 9, 1934

Department 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Ruth E. Lewis against Jake's Famous Crawfish, Inc. the Burnside Company, and another. From a judgment for plaintiff against second named defendant, such defendant appeals.

Reversed and remanded, with direction.

Francis E. Marsh, of Portland (Wilbur, Beckett, Howell & Oppenheimer of Portland, on the brief), for appellant.

Marvin K. Holland, of Portland, for respondent.

BAILEY, Justice.

This action was instituted by the plaintiff against the defendants Jake's Famous Crawfish, Inc., a corporation, Burnside Company, a corporation, and B. B. Wojcik, doing business as York Hotel, to recover damages for injuries sustained by plaintiff in falling through an opening in the sidewalk into a passageway leading from such opening to the basement of the adjacent building. Voluntary nonsuits were taken as to all the defendants except the Burnside Company. From a judgment in favor of the plaintiff and against that defendant, this appeal is prosecuted.

The accident which forms the basis of this action occurred on August 3, 1932. On that date, and for many years prior thereto, the defendant Burnside Company was the owner of a four-story brick building located at the southwest corner of Twelfth and Stark streets in Portland, Or. A part of the ground floor on Twelfth street and the basement immediately thereunder were occupied by Jake's Famous Crawfish, Inc. hereinafter to be referred to as the lessee. The upper part of the building was occupied by the defendant Wojcik as the York Hotel.

In the sidewalk on the east side of the building, and directly in front of the part of the premises occupied by the lessee there was an opening through the sidewalk for the use of the lessee and its employees in receiving delivery of supplies to be used in its kitchen, which was located in the basement. The outer edge of this opening was within eight or ten inches of the outer edge of the curbing. This basement entrance was covered by two iron doors extending from east to west across part of the sidewalk next to the street. The doors were about sixty-three inches in length, and their combined width was approximately fifty-two inches. When closed, they overlapped at the center of the opening, were level with, and constituted part of, the sidewalk, and were fastened underneath by a bar so that they could be opened from the inside only. The doors opened outward from the center, and upward to a height of about twenty-six inches above the sidewalk, and were held in a vertical position by an iron bar inserted through eyelets bored in the flanges on the inside of the doors. This bar also served to protect pedestrians on the sidewalk, passing between the doors and the hotel, from falling into the opening when the doors were raised. On the curb end of the opening there were no holes in the flanges of the doors similar to those on the inner end where the bar was inserted. Deliveries were made to the basement at the curb end of the opening.

About 11:30 o'clock p. m., on August 3, 1932, the plaintiff and her escort drove up and parked their car alongside the curbing immediately in front of this opening. At that time the doors were raised, and the plaintiff, in stepping from the automobile to the sidewalk, fell into the aperture suffering injuries which are the basis of this action.

That part of the building, the basement thereunder, and the passageway to the opening above referred to had for many years been leased by the Burnside Company to the restaurant. No one except this lessee and its employees had access to the cellarway under the sidewalk, or the use of the trapdoors.

The last written lease between these parties was dated July 17, 1930, and expired on July 1, 1932. According to the terms of this lease, the lessee was to pay a rental of $275 per month, and, before the term had expired, the rent was reduced to $150. The lessee promised, among other things, to make all repairs necessary to the premises during the term of the lease. Prior to, or about the time of, the expiration of the lease, it was understood between the lessor and the lessee that the latter would continue to occupy the premises under the terms and conditions of the written lease above mentioned, until terms and conditions of a new lease should be decided.

In front of the lessee's place of business, and within eight or ten feet of the trapdoors in the sidewalk, there was a 200-watt electric light. In addition, considerable light was thrown upon the street and sidewalk from the windows of lessee's restaurant and from an arc light at the intersection of Twelfth and Stark streets. There is no question but that the sidewalk and trapdoors were properly constructed, and no claim is made that the defendant was in any way guilty of negligence in their construction, beyond the acts of negligence charged against the defendant, which acts, in the language of the trial court, were the following: "In failing to have a place for a horizontal bar on the outside or next to the curb," and "not providing a screen or cover over the shaft or opening as a protection to pedestrians and people alighting from automobiles to the sidewalk."

At the close of the trial, the defendant moved for a directed verdict, on the ground that the evidence failed to show any acts of negligence on the part of defendant which could be said to be the proximate cause of plaintiff's injuries. The denial of this motion is the basis of the only assignment of error urged on appeal.

Jake's Famous Crawfish, Inc., was occupying and in control of the premises where the accident happened, under the terms and conditions of the written lease hereinbefore mentioned. That company, with the consent of the owner of the property, continued in possession of the premises after the date specified for the expiration of the lease, but on the distinct understanding with the owner that its occupancy continued under the terms of the written lease.

The proximate cause of plaintiff's injuries was the lessee's negligence in permitting the trapdoors to remain open without guard or barricade on the outer or street end of the opening, and not any defect in the construction of the trapdoors.

The plaintiff in the case of Dammeyer v. Vorhis, 63 Ind.App. 427, 113 N.E. 764, brought an action against the owner of certain property, for personal injuries received in falling into a "cellarway leading from a sidewalk to a basement of a building in the city of Indianapolis." The complaint alleged that the first floor and the basement of the building were leased to a tenant; that the owners had provided and maintained "iron grating doors over said opening, which had to be lifted and laid back to a point beyond the perpendicular to gain access to the basement; that said owners negligently failed to provide any guard or light around said opening and that a guard...