Staples v. Senders

• Decision Date: 27 February 1940
• Citation: Staples v. Senders, 164 Or. 244, 96 P.2d 215 (Or. 1940)
• Parties: STAPLES <I>v.</I> SENDERS ET AL.
• Court: Oregon Supreme Court

164 Or. 244

96 P.2d 215

STAPLES

v. SENDERS ET AL.

Supreme Court of Oregon.

Argued October 10, 1940.

Reargued on rehearing February 27, 1940.

Reversed November 21, 1939.

Former opinion adhered to April 16, 1940.

Appeal and error — Construction on appeal

1. On appeal from judgment for plaintiff in negligence action, case must be viewed in light most favorable to plaintiff.

Landlord and tenant — City ordinance

2. The ordinance of the city of Portland providing that all stairways in public buildings over three risers in height shall have a substantial railing along outside does not require property owners to place barriers at heads of stairways, as respects liability of lessor of store premises for injuries to store patron resulting from his falling into opening at entrance of stairs leading into basement.

Landlord and tenant — Operation of statute

3. A statute requiring that all stairways in public buildings over three risers in height shall have a substantial railing along outside of stairway requires that railing be prolonged above the level of the floor, as respects liability of lessor of property occupied by store to store patron who fell through an open trapdoor down stairway of building.

Landlord and tenant — Injuries to store patron

4. In action by store patron who fell into opening at entrance of stairs leading into basement, against lessor of store premises, absence of railings on other three sides of opening was not the proximate cause of patron's injuries.

Negligence — Violation of law

5. To establish liability for an injury allegedly resulting from violation of a statute or ordinance, it must appear that compliance with statute or ordinance would have prevented injury.

Negligence — Violation of law

6. Where an act is a failure merely of a legal duty, causation is established only when doing of act would have prevented the result.

Landlord and tenant — Injuries to store patron

7. In store patron's action against lessor of store premises to recover for injuries suffered on falling into opening at entrance of stairway leading into basement, failure to extend stair railing above level of floor was not a proximate cause of patron's injuries where manner of patron's fall indicated that he would have been unable to grasp handrail if it had been constructed.

ON REHEARING

Landlord and tenant — Negligence — Proximate cause

8. In store patron's action against lessor of store premises for injuries resulting from fall through open trapdoor down stairway, evidence that as patron fell he reached for place where he contended railing along stairway should have been, was sufficient, if negligence of lessor in failing to surround trapdoor with handrails and to extend stair railing above floor level was shown, to take case to jury on issue of "proximate cause".

Trial — City ordinance — Construction

9. In store patron's action against lessor of store premises for injuries resulting from fall through open trapdoor down stairway, wherein patron relied on city ordinance requiring railing along stairways and around wellholes, construction of the ordinance was a question of law for court, and permitting jury to determine whether ordinance governed right of parties was error.

Appeal and error — Construction of ordinance

10. Where construction of ordinance and its applicability to particular facts was erroneously left to jury and question was raised by appropriate motions in trial court, supreme court was required on appeal to construe the ordinance and determine its applicability.

Municipal corporations — Construction of ordinance

11. In construing ordinance, court must avoid imputing to the lawmaking body an intention that would lead to absurdity and must give to the provisions of the ordinance a reasonable construction.

Statutes — Construction — Intent

12. In construing a statute, a thing within the intention of the lawmaking body is regarded as within the statute although not within the letter, and a thing within the letter is not within the statute unless within the intention.

Evidence — Common knowledge

13. The use of trapdoors in buildings and sidewalks is a matter of common knowledge.

Landlord and tenant — Injuries to store patron

14. As respects liability of lessor of store premises to store patron who fell through open "trapdoor" down stairway, city ordinance requiring railings along stairs and handrails around "wellholes" of stairs was inapplicable and did not require lessor to build handrail around "trapdoor" or to extend stair railing through trapdoor and above floor level, since to so require would destroy trapdoor's only utility, that of forming part of usable floor space when closed.

Landlord and tenant — Negligence — Liability

15. Owner of premises leased to another who had exclusive possession and control would not be liable for injuries sustained by lessee's invitee unless injuries were caused by some defect in the premises existing at the time of the letting or resulting from owner's negligence in making repairs, either voluntarily or pursuant to stipulations of lease.

Landlord and tenant — Negligence — Liability

16. As respects liability of lessor of store premises to store patron who fell through open trapdoor and down stairway unprotected by handrails or stair railing extending above floor level, maintenance of such condition, which existed on premises both at time lease was given and after repairs by lessor following fire damage, was not a "nuisance" or any evidence of negligence, since there was nothing inherently dangerous about the "trapdoor", the only danger being in its use, over which lessor had no control.

Landlord and tenant — Fall through trapdoor

17. As respects liability of lessor of store premises to store patron who fell through open trap door down stairway, "proximate cause" of injuries was lessee's permitting trapdoor to remain open when stairs were not in use and was not any negligence of lessor in failing to surround trapdoor with handrails or to extend stair railing above floor level.

  Duty and liability concerning condition of store or shop, note
                100 A.L.R. 710. See, also, 20 R.C.L. 66 (7 Perm. Supp., 4820)
                  36 C.J., Landlord and Tenant, §§ 913, 953
                

In Banc.

Appeal from Circuit Court, Multnomah County.

JOHN P. WINTER, Judge.

Action for damages for injuries suffered from a fall through an open trapdoor by Isaac Staples against Henrietta Senders, executrix, and Arthur Senders, executor, of the estate of Eugenia J. Rothschild, deceased. From a judgment for the plaintiff, the defendants appeal.

REVERSED. FORMER OPINION ADHERED TO ON REHEARING.

James Arthur Powers, of Portland (Otto J. Kraemer, of Portland, on the brief), for appellants.

Calvin N. Souther and Robert Mautz, both of Portland (Wilbur, Beckett, Howell & Oppenheimer, of Portland, on the brief), for respondent.

This action was commenced against Eugenia J. Rothschild, who died pending the litigation. Her executors, substituted in her place, have prosecuted this appeal. For convenience of statement, the case will be treated in this opinion as though Mrs. Rothschild was still the defendant and appellant.

The defendant has appealed from a judgment for damages for personal injuries in favor of the plaintiff, based upon the verdict of a jury. Plaintiff's injuries resulted from a fall through an open trapdoor and down the stairway to the basement of a building in the city of Portland. The defendant is the owner of the building, and the particular portion of the premises in which the accident occurred was, at the time, in the possession and under the control of a tenant. Rulings of the Circuit Court denying the defendant's motions for a judgment of involuntary nonsuit and for a directed verdict in her favor are assigned as error. The sole charge of negligence is based upon the failure of the defendant to maintain a railing around the trapdoor and a railing along the upper portion of the stairs leading to the basement. It is asserted by the plaintiff that these omissions constitute both a violation of an ordinance of the city of Portland and a breach of the common law duty owed by the defendant to the plaintiff; while the defendant maintains that the ordinance has no application to the case, and that she, as owner of the building, violated no duty to the plaintiff imposed upon her by the law; and that, even though the proof shows negligence on her part, such negligence was not the proximate cause of the accident, but that the plaintiff's injury was caused by his own negligence, that of the tenant, or of both.

The building where the plaintiff was injured is located on South West Third Avenue, at the corner of Columbia Street in the city of Portland. It consists of three stories and a basement. The ground floor is used for stores, and the two upper floors as a hotel. The accident occurred in one of the stores which was occupied by the defendant's lessee, Mrs. Sarah Herman, who for eight years had conducted there a second-hand and antique business. Photographs picturing the conditions were received in evidence, and from these and the oral testimony we gather that the building faced west, the storeroom was fifty-five feet deep and twenty-two feet wide, and the trapdoor, which was seventy-four inches long and thirty-eight inches wide, was a few feet from the north wall which it paralleled lengthwise, the entrance to the basement stairway being at the east end of the trapdoor, which would be the end nearer to the rear of the room. Except at this end there was apparently no means of easy access to the trapdoor because of the wall on its north side and furniture and other articles of merchandise which partially surrounded it. A person desiring to reach it from the front of the store would walk down an aisle between articles of furniture, tables and cases displaying merchandise, and turn to the left at a large piece of furniture, called in the testimony a commode or chest. After passing...