Massey v. Seller

• Decision Date: 05 July 1904
• Citation: 45 Or. 267,77 P. 397
• Parties: MASSEY v. SELLER et al.
• Court: Oregon Supreme Court

77 P. 397

45 Or. 267

MASSEY v. SELLER et al.

Supreme Court of Oregon

July 5, 1904

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by P.M. Massey against M. Seller and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This action is in tort, arising on account of the alleged negligence of the defendants in maintaining an elevator or hoist in their store building for the purpose of transferring merchandise from one floor to another. It is averred that the elevator was not inclosed in a shaft, and that it had no guards, railing, gate, trapdoors, or other protection, on account of which the plaintiff, without fault on his part was precipitated down the open space, resulting in his injury. The defendant set up contributory negligence on the part of the plaintiff. A nonsuit having been granted on motion of the defendants, plaintiff appeals.

D.R. Murphy, for appellant.

R.W Wilbur, for respondents.

WOLVERTON J.

The question presented for our consideration arises upon the non-suit, and, to be understood, requires a statement of the facts developed by the evidence:

By agreement of the parties a map of the ground plan of the store building in which the accident occurred was considered in evidence. The building extends from Front street on the east, along Burnside street on the north, to First street on the west. The regular entrances for customers are from the east, but there is also an entrance way from the west. The main business office is situated near the center of the building, with its westerly wall approximately at the center the entrance thereto being from Burnside street, and the manager's office set off from this in the southeast corner. West of and adjoining the business office is the shipping room, having an entrance from Burnside street through which there appears to be a slight incline from the sidewalk. The room is approximately 16 by 28 feet, extending lengthwise with Burnside street. In the southeast corner is the shipping clerk's office, approximately 6 by 8 feet, possibly 6 by 9, situated lengthwise with the room. Next to this on the north is the elevator shaft, of about the same dimensions; the westerly end extending out even with the shipping clerk's office. This shaft appears from the map to be inclosed on the south by the office partition, on the east by the partition between the shipping room and the main business office, and on the north by a wall running up with the shaft. The latter inclosure is two feet four inches from the outside wall of the building, and extends slightly, from 8 inches to a foot, past the easterly jamb of the doorway from Burnside street. On the west there is no inclosure whatever to the shaft, the entire width being without gate or guard rails to impede entrance therein from the main floor of the shipping room. On the opposite side of the shipping room from the entrance from Burnside street is a door leading into the main westerly room of the building, which is designated as "Display Room--Tinware Dept." This door is situated 4 or 5 feet further west than the main entrance, so that one crossing from the display room to the outside entrance would pass in a diagonal direction across the shipping room, approaching the elevator shaft, but leaving it clearly to the right from the nearest point of contact.

The plaintiff was an employé of another wholesale house, and is the only witness who testified to the circumstances of the accident, which occurred about 11 o'clock in the morning. He was sent to the house of the defendants to exchange 18 or 20 cases of fruit jars. He first drove to the front of the building on Front street and entered by that way, going around to the shipping clerk's office to ascertain about the jars, but, being afraid to leave his horse standing, went out the way he came, and drove around on Burnside street, and hitched the horse to a telegraph pole. From this point his jars were deposited on the outside of the shipping room, whereupon, by request of the clerk of the defendants, he entered the shipping room and assisted in loading jars from that room which were upon the opposite side of the door from the shaft upon his wagon. Finding that defendants did not have at the building a particular size of the jars that was wanted, the clerk, while with plaintiff on the outside of the shipping room upon the sidewalk, said to him that they would have to go over to Fifteenth and some other street, the name of which plaintiff did not catch, to get them, and went immediately back through the shipping room, the plaintiff following, passing into the display room or tinware department toward First street. When they had continued some little distance therein, the plaintiff, finding that the clerk was getting ahead of him or was going too fast, concluded to turn about and await his return on the outside. He testified, using his own language: "So I turned to go outside of the door, to get outside again. I came pretty near to the door, and looked in there. It was a little dark in there. I didn't find him. I thought maybe I would find a water closet in there, because I wanted to go to the closet, and I made a step or two, and I went right in the elevator." Later, he continues, relative to the same incident: "But when I got here, I seen this dark place. I had not been there. I thought it was a closet, and I had been working hard, and wanted to go to the closet, *** and I walked right into it." And, as to the condition of the room: "It seemed very dark to me. I could not say--I never noticed inside of the building enough to know--but it seemed very dark to me in there; but, to say whether there were any windows or not, I could not say. I know it seemed dark to me after coming out of the light." On cross-examination he further testified, relative to the time of turning back: "I was going outside, but I thought that I could get to the closet. Q. On your way back, how long did you stop in the shipping room? Did you stop there at all? A. No; I walked right back and went off. *** Q. Your remembrance of it is that you passed right back here? A. Yes. Q. What made you think the water closet was in that place? A. It was a dark, desolate looking place. It was a dark corner, *** and I thought from the looks of it there might be a closet there. Q. Did you pay much attention where you were going? A. I was not looking for a trapdoor to fall in, but I could see nothing. *** It looked dark. It looked just like a dark corner. Q. What attention did you pay to where you were going? A. I just looked back; simply glanced back. *** Q. Did you look carefully to see? A. No, I don't think I looked; but it was dark in there, a dark corner." He further testified that it was a bright sunshiny morning, that the door entering from the street was a good-sized one, but that he did not pay any particular attention to it, because he was in a big hurry, and that he did not ask any one where to find a closet.

This comprehends the gist of the testimony, and the pivotal question in the case is whether the plaintiff has been guilty of such contributory negligence as will prevent his recovery. It may be assumed that it was the duty of the defendants to warn plaintiff of the danger or apprise him of the unguarded elevator shaft when inducing him to enter the shipping room to make the exchange or transfer of the fruit jars, that it was a duty they owed him, and that they were negligent in the nonobservance of it; but was their negligence the proximate cause of the injury, or was it the contributory negligence if so found to be, of the plaintiff? "Although," says Mr. Justice Lord, in Walsh v. Oregon Railway & Nav. Co., 10 Or. 250, 253, "the evidence may disclose the defendant to have been guilty of negligence, it will not excuse negligence or the want...