De Mars v. Heathman

• Decision Date: 01 April 1930
• Citation: 132 Or. 609,286 P. 144
• Parties: DE MARS v. HEATHMAN. [a1]
• Court: Oregon Supreme Court

286 P. 144

132 Or. 609

DE MARS v. HEATHMAN. ^[a1]

Supreme Court of Oregon

April 1, 1930

In Bank.

Appeal from Circuit Court, Multnomah County; O. M. Corkins, Judge.

Action by Pauline De Mars against Geo. R. Heathman. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

This is an action for damages, for personal injuries alleged to have been suffered by plaintiff on April 2, 1928, through the negligence of the defendant, owner of the New Heathman Hotel in the city of Portland, where the plaintiff was then employed.

Plaintiff alleges that, as part of her duties, she was compelled to use certain steps and stairways which led to the back entrance of the hotel. As to the manner in which the injury was sustained, she further alleges: "That, on April 2, 1928 at about the hour of 7:45 A. M., plaintiff came to said stairway, and the steps thereof and particularly the floor for a distance of 18 inches leading to the top steps, and the top step itself, were, and each of them was, covered with grease, dirt and water, and as plaintiff stepped on the top step of said stairway, by reason of said grease, dirt and water, she slipped and fell down said stairway, striking on her back at the point of the sacrum, falling down said twelve steps to her damage, as hereinafter set forth."

Plaintiff asserts that the defendant was reckless, careless, and negligent in failing to have the floor and hallway leading to the steps referred to properly lighted, and "in having permitted said top step and stairway to be covered with dirt grease and water."

The defendant, answering, admits that plaintiff was employed by him on the date of the accident, and denies each and every other allegation contained in the complaint. For a first separate defense, defendant alleges that, during the period of her employment, plaintiff was co-operating with the employees of the hotel, whose duty it was to keep the hallway and stairway clean and free from dirt, grease, and water, and that plaintiff was a fellow servant of such employees, and if the injuries described in the complaint were received by reason of any negligence in keeping the hall and stairway clean, such injuries, if any, were due to the negligence of plaintiff's fellow servants. For a second separate answer and defense, the defendant alleges that whatever injuries, if any, plaintiff sustained in her averred fall on the stairs were the result of the risk understood, known, appreciated and assumed by her in her employment. For a third, defendant avers that, upon the particular date alleged in the complaint, plaintiff was late in arriving at the hotel for work, and, notwithstanding she was wearing high-heeled shoes of such character and condition as to make her footing insecure, especially on the stairway, she recklessly and negligently proceeded at a rapid and dangerous pace through the hallway and to and upon the stairway, and negligently failed to watch her step while descending the stairs, by reason of which negligent acts and omissions she fell to the landing and received the injuries described.

As a result of the trial plaintiff recovered a judgment for $1,500 and costs. The defendant, appealing, says that the court erred in overruling defendant's motions for a judgment of involuntary nonsuit and for a directed verdict, and in giving certain instructions and refusing others.

Crum, Murdoch & Dusenbery, Collier, Collier & Bernard, and William G. Smith, all of Portland, for appellant.

B. A. Green, of Portland, for respondent.

BROWN, J.

Defendant's motion for a judgment of involuntary nonsuit is somewhat involved with his argument in support thereof. So far as material to the issues, it reads: "Your Honor, at this time we would like to interpose a motion for a nonsuit, on the ground and for the reason that the evidence as adduced here fails to show any actionable negligence on the part of the defendant. There is no testimony that tends to show any negligence except that there was some grease on the floor."

The plaintiff testified, in substance, that she had been in the employ of the operator of the hotel for about two months prior to the date of the accident, at a wage of $60 a month; that it was her duty to care for the rooms on the sixth floor of the hotel, and that her hours for working were from 8:00 o'clock a. m. to 4:00 p. m.; that on the morning she received the injuries she entered the hotel by the employees' entrance in the rear of the building. With respect to the arrangement of this entrance, she said:

"I walked into the long hall, then turned into a shorter hall, then make another turn. There is a flight of eight steps as I come to the landing. I was about 6 or 12 inches from the first step, so that my feet went out from under me, I fell and realized I was getting on my back, so I turned on my side. I injured my left side instead of breaking my spine.

"Q. How far did you fall? A. I went the full length of the stairs."

She testified that, after she had been picked up by a waitress and one of the cooks, she felt faint, so she sat down on the floor until she began to feel better. As to what then transpired, she said: "Then I went upstairs to see what I slipped on, and I seen the stairs where there was grease. * * * There was a large spot like gravy or soup or grease that was spilled on that step at the top of the stairs, and there was some on the next two steps, a smaller amount."

Concerning the procedure on reporting for work in the morning, she testified:

"Well, we didn't have anywheres to report particularly; just went in and got our keys in the linen room, that is, in the basement; and then go up to our floors, wherever we were working.

"Q. Now, where were those keys, tell the jury? A. In the linen room in the basement. They had a room there where they kept supplies and things that we used upstairs, and the keys were kept there. * * *

"Q. Yes. Now, where did you enter the hotel? A. Well, by the rear entrance for employees.

"Q. And had you been using this entrance all the time during your employment there? A. No, just the last two or three weeks that I was employed there we were compelled to use it, that entrance. We had used the front entrance before, up till they got that passageway cleared so we could use that. Then we were told we would have to use that servants' entrance."

On cross-examination the plaintiff testified:

"Q. Was it light the same as it had been there each morning? A. I couldn't say whether the light was up there that morning that I fell or not. * * * The hallway wasn't lit well.

"Q. Well, would you say that there was or was not a light there? A. I couldn't say positively there was a light there because the hall wasn't lit very well when I fell.

"Q. * * * I want you to tell this jury whether you say there was or was not a light there at all? A. Well, I couldn't say. I could not prove that. I could not answer that question.

"Q. You haven't any idea whether there was a light there or not? A. No, I just went down so quick I didn't realize anything. * * * "Q. Then do you know whether they usually kept a light there? A. Well, I couldn't say positive.

"Q. Do you know whether or not they ever had a light there? A. I couldn't say positive. I know there wasn't any daylight. * * *

"Q. According to your statement you had been using that stairway each day (for 3 weeks) and you don't know as to whether there was any light in there? A. No, I couldn't swear whether there was a light there or not.

"Q. Not only that morning, but any morning? A. Yes, I could not, no; I couldn't say whether they ever kept a light there or not. I could not prove that.

"Q. Well, had you ever complained to anyone about not having lights there? A. No. * * *

"Q. How wide a place was there grease on that (the landing)? A. Well, I would say * * * 8 or 10 inches. * * *

"Q. Was it the whole length of the step? A. No, * * * just where I happened to be standing there; * * * about the center of the steps. * * * I couldn't tell what it was. It looked like grease though. It was something kind of slippery. * * * Grease or oil; well, it looked something like that on there. I couldn't say positively.

"Q. Will you describe what you saw? A. It was just like a grease or oil or something on there.

"Q. What kind of grease or oil, and how much of it was there? A. Well, it was just on the top of the surface, on top of the step.

"Q. Well, do you know anything about greases and oil? A. Well, oh, I could not describe what kind of grease was on there. No, I could not. It looked more like a meat gravy than anything like that, you know, something out of a pan, spilled.

"Q. A meat gravy? A. Something like that.

"Q. What do you mean, 'Something like that?' A. Well, it looked like a gravy, meat grease or something, that was up there. * * *

"Q. Now, you said something about knocking the heel off your shoe. A. I pulled the heel loose off my shoe.

"Q. Your shoe was off, too, after you got down on the landing? A. No. They were buttoned on. There is a little strap--a heel about 2 inches high; a Mary Pickford heel is what I think they were. * * *

"Q. You didn't make any complaint to anyone that there was grease on the floor? A. I never said anything like that, no.

"Q. No, at no time did you tell anyone about...