Senner v. Danewolf

• Decision Date: 05 January 1932
• Citation: 139 Or. 93,6 P.2d 240
• Parties: SENNER v. DANEWOLF et al. [*]
• Court: Oregon Supreme Court

6 P.2d 240

139 Or. 93

SENNER v. DANEWOLF et al. ^[*]

Supreme Court of Oregon

January 5, 1932

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Lewis Senner, by Katherine Senner, guardian ad litem against Henry Danewolf and wife and others. Judgment for plaintiff, and defendants Danewolf appeal.

Affirmed.

See also, 293 P. 599.

McDannell Brown, of Portland, and Charles J. Zerzan of Salem (C. M. Idleman, of Portland, on the brief), for appellants.

Henry E. Collier, of Portland (Collier, Collier &amp Bernard and William G. Smith, all of Portland, on the brief), for respondent.

CAMPBELL J.

Defendants Henry Danewolf and Marie Danewolf are the owners of a certain lot and building thereon at the northwest corner of the intersection of Failing street and Thirteenth street, Portland, Or. The building is a one-story concrete structure used as a store, fronting south on Failing street. These premises were leased and occupied by defendants, Louis Stedding and Jane Doe Stedding, his wife, as a grocery store, with living apartments in the rear part of the building. The living apartments were reached either through the store, during business hours, or by a side door opening on a driveway and walk immediately to the west of the building, and leading from garages in the rear to Failing street. This driveway is six and a half feet wide with a curb on the west side four inches high, and a curb on the east side seven inches high. There is a space between the driveway and the building three feet nine inches wide, separated from the driveway by the curb on the east side of the driveway. This walk, immediately in front of the side door, is fourteen and one-half inches lower than the curb. From the space in front of the door, a step four inches high leads to the left towards Failing street, and two steps lead to the right, toward the garages, as one comes out of the side door. From the step leading to Failing street, the walk is practically level, with the curb ten inches high between the walk and the driveway. About seven feet southerly, and towards Failing street from the entrance to the side door, is an open stairway leading to the basement, with a lower landing place at the northerly end about six feet below the level of the walk. There is no curbing, barrier, or railing around any part of the stairway. The opening in the walk occupied by the stairway is about nine feet by two and one-fourth feet, lying lengthwise with the building, with the steps leading down from the southerly end, thus leaving between the outer edge of the opening and the curbing of the driveway about eighteen inches of the walk. From the stairway to the street, about ten feet, this paved space has all the appearances of a sidewalk, and connects with the sidewalk on Failing street.

About eight o'clock on the evening of March 29, 1929, the plaintiff, a boy eight years old, came to the store to make a purchase of groceries. He tried to enter at the front door, but was unable to open it. Mrs. Stedding, one of the lessees, who was within the storeroom and saw his attempt to gain entrance, directed him to enter the store through the side door, which he did. He bought a loaf of bread, and started home the way he came. When he got through the side door, he turned left and proceeded towards Failing street and fell into the stairway opening and was injured. He brought this suit to recover damages for that injury.

The case was tried to a jury. At the close of plaintiff's case, the appealing defendants moved for an involuntary nonsuit, which was denied. When all the evidence was submitted, the appealing defendants moved for a directed verdict in their favor, which was also denied. The cause was then submitted to the jury, who returned a verdict for plaintiff against all the defendants in the sum of $5,100, and judgment was entered thereon. Appellants moved to set the verdict aside as to themselves, which motion was also denied.

Defendants Henry Danewolf and Mary Danewolf appeal. They base error on the rulings of the court in denying said motions. Before the case was submitted to the jury, the appellants requested the court to instruct the jury to return a verdict in favor of the appealing defendants. This requested instruction was merely a renewal of the motion for a directed verdict in favor of the appellants. There was a special verdict submitted to, and returned by, the jury.

"1. The door to which plaintiff was invited did lead to premises occupied as a residence by the Steddings.

"2. The defendants Danewolf did not authorize expressly and implicitly the use of said premises for other than residential purposes.

"Unable to answer to question character No. 2.

"James A. Foreman, Foreman."

The foregoing special findings are as set up in appellants' abstract of record, and to which the briefs of counsel for other party are directed. The original record sent up by the clerk is somewhat different, but raises the same questions.

This question No. 2 was misleading and too indefinite. It did not define what part of the premises was referred to. The store and living apartments were in the one building on the same floor and all connected by doors....