Peters v. Schillig-Scott Lumber Co.

• Decision Date: 03 March 1941
• Docket Number: 14612.
• Citation: 107 Colo. 310,111 P.2d 898
• Parties: PETERS v. SCHILLIG-SCOTT LUMBER CO.
• Court: Colorado Supreme Court

111 P.2d 898

107 Colo. 310

PETERS v. SCHILLIG-SCOTT LUMBER CO.

No. 14612.

Supreme Court of Colorado

March 3, 1941

Rehearing Denied March 31, 1941.

In Department.

Error to District Court, Logan County; H. E. Munson, Judge.

Action by Emily Louise Peters against the Schillig-Scott Lumber Company, to recover damages for negligence in constructing and maintaining a defective and dangerous means of entrance to defendant's business premises. Judgment for defendant and plaintiff appeals.

Reversed and case remanded with directions.

Pershing Nye, Bosworth & Dick and Samuel S. Sherman, Jr., all of Denver, and Marcus C. Leh, of Sterling, for plaintiff in error.

Sauter & Sandhouse, of Sterling, for defendant in error.

OTTO BOCK, Justice.

This is an action for damages based upon the alleged negligence of defendant in error in constructing and maintaining a defective and dangerous means of entrance to and exit from its business premises. The parties to the action are here in the same relative capacity as they appeared in the court below, and for convenience reference will hereinafter be made to them as plaintiff and defendant. Defendant filed a general demurrer to the complaint, which was sustained. Plaintiff elected to stand upon her complaint, which election was followed in due course by a dismissal, and entry of judgment in favor of defendant.

The record discloses that the sole question Before us for determination is the adequacy of averment of facts in the complaint, as to the negligence of defendant, to state a cause of action. In considering a general demurrer on this ground, it is the settled rule that all well-pleaded facts must be accepted as true.

The pertinent portions of the allegations of the complaint herein are as follows:

'II. At all such times hereinafter mentioned defendant operated and conducted on said premises a general lumber sales business, and in conducting said business used and maintained on said property for the accommodation of its customers a one-story office building. A general and main entrance way to the said office building was maintained by defendant for the use of its customers on the northerly end of the said building opening onto the public sidewalk as projected to the northerly edge of said building and running parallel to and along the southerly side of said Chestnut Street. In said entrance way defendant maintained a wooden door thirty-six inches in width, set flush with the inner edge of the said northerly wall and opening into said building. Approximately eight inches from said door and set flush with the outer edge of said northerly wall defendant maintained in said entrance way a screen door of similar dismensions as said wooden door. Said screen door opened outward over the sidewalk projected as aforesaid and over a cement step hereinafter more particularly described and located immediately below said entrance way. A base or wooden framework approximately seven inches in height extended along the bottom of said screen door in such a manner that it totally obscured from view from within said office building the said cement step hereinafter described. Beneath said wooden and screen doors a combination wood and cement sill extended outward on an eight and one-third per cent downward slope toward said sidewalk a distance of approximately twelve inches. Descending from said sill, approximately four and one-half inches below the outer edge thereof, defendant had constructed and maintained upon said sidewalk projected as aforesaid a cement step approximately sixty-four inches in length, twenty inches in width and five and one-half inches in height. Both the cement portions of said sill and said step, constructed as aforesaid, were by defendant calculated to and did in fact match in shade and color the material and surface of said public sidewalk as projected to the building line, and, as so constructed in the manner fashion and design aforesaid, said entrance way, sill and step were dangerous hazards and unsafe for use by plaintiff and others visiting said office building for the purpose of doing business with defendant, and constituted a concealed peril and pitfall.

'III. On or about the 27th day of August, 1937, plaintiff, acting as agent and under the express authorization and direction of her husband, R. W. Peters, visited said office building for the purpose of carrying on certain business connected with the purchase of materials from defendant by the said R. W. Peters, which business was on said date transacted by plaintiff with defendant in said building. On said occasion plaintiff was ignorant and unaware of the dangerous and unsafe condition of said entrance way and had never Before visited said office building. After concluding her business with defendant as aforesaid plaintiff attempted to depart from said office through said entrance way. She proceeded with due care and caution through the doorway and pushed open ahead of her the screen door aforesaid; because of the framework along the bottom of said screen door constructed in the manner hereinabove described, plaintiff was unable to and did not see the outer edge of the cement step located immediately below said entrance way. Plaintiff stepped down from the slanting sill in said entrance way upon the surface of the step below and, believing herself to be upon the public cement sidewalk projected as aforesaid, commenced to walk away from said building. On arriving at the edge of said step plaintiff, while still in the exercise of due care and caution, stepped off the end thereof and stumbled and fell on the sidewalk below, projected as aforesaid, and thereby incurred severe and grievous injuries as hereinbelow set forth.

'IV. Said fall was caused solely and proximately by the carelessness and negligence of defendant in that it knew, or in the exercise of reasonable care and diligence, could and should have known of the dangerous and unsafe condition of said entrance way,...