Wheeler v. Hotel Stevens Co.

• Decision Date: 21 November 1912
• Parties: WHEELER et ux. v. HOTEL STEVENS CO.
• Court: Washington Supreme Court

127 P. 840

71 Wash. 142

WHEELER et ux. v. HOTEL STEVENS CO.

Supreme Court of Washington

November 21, 1912

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by L. A. Wheeler and wife against the Hotel Stevens Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

John E Humphries, of Seattle, L. N. Jones, of Arlington, and Wm. A Johnson, of Everett, for appellants.

James Kiefer, of Seattle, for respondent.

GOSE J.

The plaintiff wife stepped into an elevator shaft in the defendant's hotel and sustained a serious injury, for which damages are sought in this action. The plaintiffs have appealed from an adverse verdict and judgment.

The facts are few and simple. The appellant wife and a friend testified that they approached the elevator for the purpose of going to the room of the latter in the respondent's hotel; that the door of the elevator shaft was open; that the elevator was not there, and that the appellant, thinking that she was stepping into the elevator, stepped into the shaft without touching the door, and fell and was injured. The accident happened on the 3d day of August, about midday, and she admits that the day was bright. There is no question of inadequate lights. The respondent's witnesses, including the elevator boy, testified that the door was not open to exceed one inch, and that the appellant could not have entered without opening it. They further testified that both the appellant and her friend stated immediately after the injury that the appellant opened the door.

The appellant assigns error in the refusal of the court to give a number of requested instructions. An examination of the record discloses that some of these instructions were given verbatim, and that the others were given in substance.

Error is assigned to the following instruction: 'If the jury finds from a fair preponderance of the evidence in the case that the plaintiff Emma Wheeler, when she approached the passenger elevator maintained by the defendant in its hotel, found the door of the elevator partly open, and further opened the door for the purpose of stepping into said elevator, the plaintiff cannot recover, and the verdict should be for the defendant.' The instruction is not fortunate, but, under the facts of the case, it was not erroneous. The door was either open, so that the appellant entered without touching it, as she and her witnesses testified, or it was not open to exceed one inch, and she had to open it in order to enter. This view is supported by the following cases: Bremer v. Pleiss, 121 Wis. 61, 98 N.W. 945; Mau v. Morse, 3 Colo. App. 359, 33 P. 283; Massey v. Seller, 45 Or. 267, 77 P. 397; Ramsdell v. Jordan, 168 Mass. 505, 47 N.E. 244. In the Bremer Case, upon similar facts, the court said: 'The facts, as shown by his own evidence, were that he was very familiar with the elevator, and knew that it was in a very dark place, and was not lighted in the daytime; that he approached it, having in mind the question whether the car was there or not; that before stepping in the looked at the open hole, and saw no car, because it was dark; that the door was only partly open--about half open--and that he pushed it open with his shoulders and stepped in; that only a few moments before he had stepped into the car through the door, which was then fully open. Upon these facts, is there a question for the jury? There is no doubt that when the door to an elevator shaft is thrown open by the attendant that very act constitutes an invitation to enter. Tousey v. Roberts, 114 N.Y. 312, 21 N.E. 399, 11 Am. St. Rep. 655; Oberndorfer v. Pabst [100 Wis. 505, 76 N.W. 338]. So it has been held that, where the door is fully open and the shaft is dark, the question whether a passenger is guilty of contributory negligence in stepping in without examination is one for the jury. People's Bank v. Morgolofski, 75 Md. 432, 23 A. 1027, 32 Am. St. Rep. 403; Southern B. & L. Ass'n v. Lawson, 97 Tenn. 367, 37 S.W. 86, 56 Am. St. Rep. 804; Dawson v. Sloan, 49 N.Y. Super. Ct. 304, affirmed in 100 N.Y. 620. We have found no case, however, holding that, where the door to the shaft is only halfway open, so that the passenger entering is obliged to, and does, open it the rest of the way in order to enter, the question of contributory negligence is a matter of doubt; nor do we see how it could be so held. It seems to us entirely clear that the fact that the door is only partway open is a definite and unequivocal advertisement that something is wrong--certainly not an assurance that the car is there.'

If the appellant opened a substantially closed door for the purpose of entering the elevator and stepped into the elevator shaft, she was so clearly guilty of contributory negligence that it would seem that the minds of reasonable men could hardly differ upon that question.

The appellant relies upon the following cases: Tousey v Roberts, 114 N.Y. 312, 21 N.E. 399, 11 Am. St. Rep. 655; People's Bank v....