Peltier v. Dahlke

• Decision Date: 06 December 1967
• Citation: 248 Or. 512,434 P.2d 457
• Parties: Martha O. PELTIER, Respondent, v. Florine M. DAHLKE and H. Kent Dahlke, doing business as Roseland Hotel, Appellants.
• Court: Oregon Supreme Court

Page 457

434 P.2d 457

248 Or. 512

Martha O. PELTIER, Respondent, v. Florine M. DAHLKE and H. Kent Dahlke, doing business as Roseland Hotel, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 11, 1967.

Decided Dec. 6, 1967.

Thomas S. Moore, Portland, argued the cause for appellants. With him on the briefs were Morrison & Bailey, Portland.

Ray G. Brown, Portland, argued the cause and filed a brief for respondent.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE, and LUSK, JJ.

LUSK, Justice.

This is an appeal by the defendants from a judgment for the plaintiff in a personal injury action.

The only error assigned that calls for discussion is the trial court's denial of defendants' motion for a judgment of involuntary nonsuit.

Defendants were the owners of the Roseland Hotel in the Portland and for several years prior to the accident in which plaintiff was injured, she was employed by them as a clerk at the registration desk. On February 10, 1964, while working behind the desk she fell to the floor and sustained serious injuries, including a broken hip. Plaintiff claims that the cause of her injury was defendants' failure to provide her a safe place in which to work. A description of that place, therefore, becomes necessary.

The area involved was enclosed by the wall of the lobby at the back and a horseshoe shaped counter which curved toward the wall at both ends. Approximately in the center of this area and attached to a pillar which ran from floor to ceiling against the wall was a key rack, such as are commonly found in hotels, consisting of a series of pigeonholes for room keys and the guests' mail. To the right of the key rack, as one faced it, was a switchboard. The space between the switchboard and the key rack was approximately three feet in width. A person using the switchboard could have his back to the side of the key rack. The distance from the counter to the key rack was approximately three feet and the length of the counter between the curves of the horseshoe was about eight and one-half feet. There was conflict in the evidence concerning some of these dimensions, and we have stated those only most favorable to the plaintiff.

One of the services provided by the hotel was the sale of Oregon and out-of-state newspapers. The current papers were displayed on the counter of the registration desk. After 11 p.m. the unsold papers were stored under the counter and on the floor under the key rack, the bottom of which was approximately two feet above the floor, according to some of the testimony, and 18 inches according to the plaintiff. On this occasion the papers had been removed from the counter and stacked the night before by the night clerk, Eva Wright, who testified as a witness for the plaintiff that the pile of papers extended into the work area towards the counter six to nine inches and towards the switchboard two to three inches. The plaintiff testified that on the day of the accident the newspapers were stacked differently than previously, as they extended out over a larger area towards the counter and the switchboard--she estimated the distances as 12 or 14 inches towards the counter and four or five inches toward the switchboard.

On the day of the accident the plaintiff reported for work about seven a.m. She did not spend all her time back of the desk because of other duties, such as vacuuming and dusting the lobby and feeding the parking meters for the cars of late-sleeping guests. There were a few calls on the switchboard and one of these led to the accident, which occurred about one p.m. A guest telephoned to 'check for a letter.' The plaintiff told what then occurred as follows:

'And my back was to the rack, so I turned around to step before the rack, and there were the newspapers that were so close I stepped against them, and at the same time I was reaching down for those letters. It tilted me to the left, and I was reaching down to get all the letters,--there were several of the letters in the lower boxes,--in case it had been misplaced, and I reached up to regain my balance, and when I stepped back, I bumped against the tall switchboard, and that threw me to the left again. And then I took one step over the corner of the papers, and I tripped over them.

'I went sideways for two or three steps, and stepped onto that tall stool, and fell on that stool, and sort of draped over it, and I tried to push myself from the rungs, but they were too low, and I couldn't hang onto it that way.

'And I started sliding to the floor, and I was wedged between the counter and the stool.'

The 'tall stool' referred to by the plaintiff was close to the counter and probably eight or nine feet distant from the switchboard.

During her cross-examination plaintiff testified: 'I bumped into the papers, but I reached up to regain my balance, and as I stepped back, I bumped against the switchboard, and that threw me to the left again.' She was asked if she tripped as she reached over to the mail slot and answered: 'No. I just lost my balance at that time.'

There may be discrepancies between plaintiff's testimony above related and the account of the accident she gave in a pretrial deposition, but these are immaterial for present purposes, as plaintiff's claim throughout is that she was injured as the result of coming in contact with the pile of newspapers when she turned and reached for the letters in the keyrack and, this, the jury was warranted in finding, is what occurred.

In her amended complaint plaintiff alleged that her fall and...