Whisler v. U.S. Nat. Bank of Portland

• Decision Date: 04 October 1938
• Parties: WHISLER <I>v.</I> UNITED STATES NATIONAL BANK OF PORTLAND ET AL.
• Court: Oregon Supreme Court

160 Or. 10

82 P.2d 1079

WHISLER

v. UNITED STATES NATIONAL BANK OF PORTLAND ET AL.

Supreme Court of Oregon.

Argued September 8, 1938.

Affirmed October 4, 1938.

Appeal and error — Nonsuit — Directed verdict

1. Where defendants, by separate motions for a judgment of involuntary nonsuit and a directed verdict, have presented for review the sole question as to whether the trial court erred in submitting the case to the jury, the supreme court will consider the statement of facts in the light most favorable to plaintiff and will not be concerned with questions of fact involving a conflict of evidence.

Landlord and tenant — Control of landlord

2. Where an employee of a pharmacy received injuries in falling through an open trap door in the rear end of the building which was leased from a bank, the lessor was not liable when it had no control over manner in which trap door was used and there was no evidence to indicate any structural defect in it.

Landlord and tenant — Fall through trap door

3. A trap door, guarded by a gate, which was located at one end of a pharmacy in a poorly lighted inclosure over a basement stairway, was not constructed or maintained in the manner of a "nuisance" so as to render the lessor of the building liable to an employee of the lessee when the employee fell through the open trap door.

Negligence — Degree of care

4. In deciding whether plaintiff was guilty of contributory negligence as a matter of law, the court must, in considering the evidence, measure the conduct of plaintiff by the standard of care that an ordinary prudent person would have exercised under the same circumstances.

Master and servant — Fall through trap door

5. An employee of a pharmacy who was injured in falling through an open trap door at rear end of building while reaching for an apron had the right, as against her employer, in the absence of knowledge to the contrary, to assume that the trap door would be closed when not in use.

Negligence — Question of fact

6. Where a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury, and it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is considered as one of law for the court.

Master and servant — Contributory negligence

7. In action by employee of a pharmacy against the lessee, who was her employer, for injuries sustained in falling through an open trap door over a stairway in rear end of the building, whether plaintiff was guilty of contributory negligence by failure to turn on a light in the basement to see if trap door was open was properly submitted to jury.

Master and servant — Invitee

8. Where plaintiff came to a pharmacy about one-half hour before time to start work in order to get an apron to take to laundry and was hurt in falling through open trap door over a stairway in the rear of the building occupied by her employer, plaintiff, at the time of accident, had the status of an "invitee", rather than that of an "employee" or "trespasser", as regarded her right to recover for the injury from her employer.

Negligence — Assumption of risk

9. Where plaintiff is an invitee upon defendant's premises at time of injury, the defense of assumption of risk is not involved.

ROSSMAN and RAND, JJ., dissenting in part.

                  See 20 R.C.L. 55 (7 Perm. Supp., 4814)
                  36 C.J. Landlord and tenant, § 919
                

In Banc.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Action by Mildred L. Whisler against the United States National Bank of Portland, Oregon, and the Ex-Cel Pharmacy to recover damages for personal injuries sustained in falling through an open trap door. From a judgment against both defendants, they appeal.

REVERSED AS TO UNITED STATES NATIONAL BANK.

AFFIRMED AS TO EX-CEL PHARMACY.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for appellant United States National Bank.

James C. Dezendorf, of Portland (Dey, Hampson & Nelson and W.H. Maguire, all of Portland, on the brief), for appellant Ex-Cel Pharmacy.

Floyd D. Moore and George Neuner, both of Portland (Floyd D. Moore and Neuner & Kimmell, all of Portland, on the brief), for respondent.

BELT, J.

Plaintiff in this action seeks to recover damages for personal injuries sustained in falling through a trap door in the floor of a building occupied by the defendant Ex-Cel Pharmacy under a lease from the defendant United States National Bank. Plaintiff obtained a verdict and judgment against both defendants in the sum of $3,874.64.

The defendants, by separate motions for a judgment of involuntary nonsuit and a directed verdict, have presented for review the sole question as to whether the court erred in submitting the case to the jury.

The defendant bank denies any negligence on its part as it had no control or supervision over the use of the trap door at the time plaintiff was injured and alleges affirmatively the defense of contributory negligence and assumption of risk. The defendant Ex-Cel Pharmacy contends that plaintiff, as a matter of law, is precluded from recovery by reason of her contributory negligence and alleges that any danger involved in the use of the trap door was assumed by plaintiff as incident to her employment.

1. In view of the assignments of error, the statement of facts will be considered in the light most favorable to plaintiff. The court will not be concerned with questions of fact involving a conflict of evidence.

For the purpose of operating a drug store, Ex-Cel Pharmacy leased from month to month from the United States National Bank a certain part of the lower floor of a building in the city of Portland. Plaintiff was employed at the soda fountain and lunch counter operated in connection with the drug store. Her hours of work were from 5 o'clock in the afternoon until midnight. At the time of the accident in question, on May 30, 1936, she went into the drug store at about 4:30 in the afternoon to get an apron to take to the laundry. This apron was in an enclosure at the rear of the drug store wherein the trap door was located. When plaintiff reached for her apron she fell through this trap door, sustaining severe and permanent injuries.

The evidence tends to show that the light was very poor in the enclosure and a person could enter only through a small gate flush with the trap door which, when closed, constituted the greater part of the floor. Steep, narrow stairs led from the trap door to the floor of the basement about eight feet beneath. Above the gate and on the wall of the enclosure were hooks upon which the plaintiff, with knowledge and permission of the defendant Ex-Cel Pharmacy, hung her working apron and coat. There was a small "25 or 40 watt" light in the basement which, according to some witnesses, reflected on the stairs and trap door opening, but plaintiff testified that the electric light in the basement was not burning. All witnesses agree that the electric light over the prescription counter in the rear of the store and opposite the enclosure in question was not turned on. Some witnesses testified that had such light been burning it would have reflected no light on the trap door. A few minutes prior to the accident a druggist in the employ of the defendant Ex-Cel Pharmacy had opened the trap door to accommodate an elderly friend who wanted to go down the stairs into the basement for the purpose of using a toilet. After his friend returned from the basement the attention of the druggist was apparently diverted by customers in the store and it is quite reasonable to assume that he forgot to close the trap door.

The plaintiff had been in the employ of the defendant Ex-Cel Pharmacy for about four months before the accident happened and was familiar with the operation and use of the trap door and the stairs leading therefrom to the basement. She testified, however, that at the time in question she looked to see whether the trap door was closed but, on account of the dim light, was unable to see plainly. She said the trap door was usually closed and that the gate in front of the same was generally fastened by a hook, although it was not fastened at the time of her accident. Plaintiff thus describes how the accident occurred:

"Well, I walked into the store to the back end of the store, and I nodded to Mrs. Snedeger, and I spoke to Mr. Bradshaw, he was at the back of the case by the entrance as you go into the room, and I looked into the room and didn't see any light, and it didn't look to me like the trapdoor was open, and I seen my apron there and stepped in and reached for it, and that is all I remember."

On cross-examination, in response to the question, "You testified a few minutes ago that you come in and you saw your apron and opened the door and reached for your apron," the plaintiff answered:

"I looked and I didn't see no light and the trapdoor didn't look open to me and it was dark, and I saw my apron hanging there, and I reached for it."

2, 3. We see no basis for liability against the defendant bank. It had no control over the manner in which the trap door was used. Certainly it is not the law that a landlord, in order to avoid liability for negligence of his tenant, must follow him around to see that a trap door not in use is closed. There is no evidence to indicate any structural defect in the trap door nor was there any covenant in reference to repairs. As a matter of fact, there were no repairs to make. We cannot agree with respondent that the manner in which the trap door was constructed and maintained constituted a nuisance. Trap doors in buildings occupied for business purposes are not unusual. Ordinarily, there is nothing inherently dangerous about a trap door. It becomes dangerous only by reason of its use.

Lewis v. Jake's Famous Crawfish, 148 Or. 340 (36 P. (2d) 352), in which numerous...