Lyman v. Hermann, 31612.

• Decision Date: 08 July 1938
• Docket Number: No. 31612.,31612.
• Parties: LYMAN v. HERMANN.
• Court: Minnesota Supreme Court

203 Minn. 225
280 N.W. 862

LYMAN
v.
HERMANN.

No. 31612.

Supreme Court of Minnesota.

July 8, 1938.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Action by Alice V. Lyman against Leonard W. Hermann for personal injuries sustained in fall through trapdoor in building owned by defendant. From an order denying her a new trial, the plaintiff appeals.

Affirmed.

Syllabus by the Court.

Defendant, the owner, let a store in a village for a restaurant, the lessee agreeing to keep it in proper repair and condition at his own cost. There was a lavatory in the rear of the restaurant, having a trap door affording access to the furnace in the basement, the trap door being so constructed that, if lifted after closing the door to the lavatory, all danger from falling into the trap door opening from the restaurant was completely barred. The lessee entered the lavatory to attend the furnace, and negligently lifted the trap door before closing the lavatory door, and, while he was in the basement, plaintiff entered the restaurant to lunch, and, seeking a lavatory, saw the fixtures through the open door, but failed to notice the lifted trap door opening, and entering, fell into the basement, sustaining severe injury. It is held:

1. The trap door was not a nuisance, nor so faulty in design or construction that defendant can be held responsible for the creation of an unreasonable risk to the patrons of the lessee.

2. No violation by defendant of §§ 5903 to 5915, inclusive, Mason Minn.St.1927, and 1936 Supp. was shown which made him liable to plaintiff.

3. It is assumed that proximate cause and plaintiff's contributory negligence were jury issues.

GALLAGHER, C. J., and LORING, J., dissenting.

[280 N.W. 863]

Child & Child, of Minneapolis, for appellant.

Ernest E. Watson, of Minneapolis, for respondent.

HOLT, Justice.

In this personal injury action the court directed a verdict for defendant, and plaintiff appeals from the order denying her a new trial.

In the village of Excelsior, fronting its main street, defendant owns three stores under one roof. One of these, about 40 feet long and nearly 15 feet wide, was let by written lease May 1, 1935, to Emil Christensen for one year, for a restaurant. Christensen sold the business to Donald Tharalson in July, 1935, and thereafter defendant accepted the monthly rent from the latter. The lease obligated the lessee at his own cost to ‘put and keep said premises in such condition that they will comply with all Federal, State and Municipal Laws, Charters, Ordinances and Regulations', and hold the lessor harmless for loss or damage by reason of present or future condition of the premises arising from acts or omissions of the lessee or other tenants or occupiers. The restaurant was equipped with several so-called booths on one side and a long counter on the other, separated by a passageway to the rear door, to the right of which there was a window, set at an angle at the corner. The counter extended back about two-thirds of the length of the room behind which was the entry into the kitchen, located in the rear part of the adjoining store. Against the rear wall to the left of the passageway was a lavatory, about five feet wide and a little over six feet long, the door to which from the passageway swings inward and towards the rear wall. There was a window in the lavatory, the lower half painted. The lavatory had the usual wash bowl and seat along the wall opposite the door. The restaurant was heated by a furnace located in the basement, access to which was by a trap door in the lavatory. The trap door was two feet wide and three and a half feet long, hinged on the long side. It was so constructed that, if opened after the door to the lavatory was shut or closed, no one could enter the lavatory, but if the lavatory door stood open when the trap door was opened the former could not be closed again without letting down the trap door. Leading down to the furnace were very steep steps. Shortly after two o'clock in the afternoon of February 20, 1936, plaintiff, in company with a Mr. Hewitt, entered Tharalson's restaurant to lunch. She laid her purse on a table in one of the booths which her companion entered,

[280 N.W. 864]

excused herself and started to the rear in search of a lavatory. As she neared the rear door the open lavatory door disclosed the white fixtures inside, and, without noticing the opening caused by the lifted trap door, she entered and fell into the basement, sustaining severe injuries. Tharalson had negligently opened the trap door without closing the lavatory door, and was in the basement attending the furnace; thus creating a situation which caused plaintiff's mishap. Defendant averred contributory negligence as a defense.

Both parties have presented exhaustive briefs and oral arguments. The assignments of error in this court upon rulings excluding or admitting proof do not trouble, for all that plaintiff sought to obtain from cross-examining defendant appeared fully from his...