Wiggins v. Pay's Art Store

• Decision Date: 28 May 1924
• Docket Number: 5216
• Citation: 199 N.W. 122,47 S.D. 443
• Parties: JULIA WIGGINS, Plaintiff and respondent, v. PAY'S ART STORE, and A. K. Pay, Defendants and appellants.
• Court: South Dakota Supreme Court

47 S.D. 443

199 N.W. 122

JULIA WIGGINS, Plaintiff and respondent,

v.

PAY'S ART STORE, and A. K. Pay, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. L. L. Fleeger, Judge #5216--Affirmed in part; reversed in part Boyce, Warren & Fairbank, Sioux Falls, SD Attorneys for Appellants. Caldwell & Caldwell, Sioux Falls, SD Attorneys for Respondent. Opinion filed May 28, 1924

DILLON, J.

This action is for damages alleged to be sustained by plaintiff in falling down a stairway. She states her allegation of negligence as follows:

"That at a point in the storeroom about 40 feet from the rear thereof, and midway between the north and south sides thereof, was on said date, an open stairway leading to the basement of said building; the entrance to the stairway being from the west. On said date there was no gate or other barricade across the entrance to the stairway. Directly in front of the entrance to the stairway was a display counter or table of about 3 feet in height, and approximately the same width as the entrance to said stairway. This table was approximately 20 feet long, and extended east and west. The east end of the table extended to within 5 feet of the entrance of said stairway. The stairway was enclosed on three sides with a display case, which served the purpose of a railing. This case was 3 feet 6 inches in height, and 15 inches thick, and had a glass front. Within the said case merchandise was displayed. On the top of the case on said date were displayed a great number of lamps with large shades. This display case with the lamps and other goods thereon and therein made it appear that there were two display cases with a passage between them where one could safely pass through; that on the day in question, when plaintiff was in said store, there was no light burning at or near the entrance to said stairway nor in it, nor in the basement near the foot of the stairway. The stairway was dark, and could not be readily or easily seen by a person approaching it. The plaintiff was a stranger in said store, and, as she was passing from the south side of said store to the north side thereof, at the invitation of an employee of said store, and while in the exercise of due diligence and care for her safety, and without knowing of the presence of said stairway, plaintiff stepped into said stairway and fell down the same to the floor of the basement, thereby breaking her collarbone and fracturing her skull. She alleges that it was the duty of the defendants to keep the premises above described, in a safe condition; to keep it lighted and free from anything to obstruct the view of one approaching such stairway, and the failure of defendants so to do constituted the negligence complained of."

The defendant Pay leased the store to his codefendant, Pay's Art Store. The landlord retained no control over any part of the building or any part of the counters or cases; neither was he obligated to make any repairs nor maintain lights in any part of the building thereon. The building and the stairway were constructed in the usual method. No claim is made that the landlord had been maintaining a nuisance, but the allegation is that the landlord was guilty of negligence in the want of reasonable and ordinary care in keeping such a building and renting the same as a place to which customers were invited. The landlord gave no invitation to shoppers. These invitations came only from the tenant. We fail to discover in the record anything growing out of the lease from the landlord to the tenant which could even remotely be fastened on the landlord as a liability. The respondent's right must necessarily grow out of her relation to the tenant alone.

The Wisconsin court, speaking of open stairways, says:

"We should be slow to say that an ordinary open stairway could be called a trap or snare even to an invitee of the tenant."

The motion of A. K. Pay at the close of the testimony for an instructed verdict should have been sustained, as the evidence was wholly insufficient to charge any negligence upon the landlord.

We now reach the question of negligence of Pay's Art Store, and the contributory negligence of plaintiff Here is the plaintiff's version of the accident:

"I did not see the stairway before I fell down. I saw what I call a display counter. It looked like a display case, and the goods were displayed on it. I suppose I intended to walk up to it and look things over and walk right past. I thought the floor safe like it was any place else; thought I was perfectly safe. I did not see any opening or stairway. I was looking ahead of me. It looked to me just like a counter. It looked like a show counter around this opening. I did not see the opening in the floor at all."

Howard Pay's version is as follows:

"I cannot tell just how far she was from the stairway when she began to move. I saw her standing a foot or two from the stairway looking at the lamps and facing the stairway. I didn't say anything to her about the stairway being there. She only took one or two steps; I didn't say anything. I observed that she was going down into the stairway."

It is claimed by the respondent that, if this table had not been there, one coming in at the front entrance could have looked straight ahead into the opening of the stairway, provided there were sufficient lights. It is also claimed that the opening of the stairway was hidden from view until one reached very close to it, and this arrangement of tables disguised the place and made it appear safe. It is a rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any.

In Lehman v. Coffee, 146 Wis. 213, it is said:

"The evidence seems to be ample to show that approaching it from the front of the store there would be no sign or indication of a stairway, and that only as one came practically to the opening itself from the east was it possible to see it, or anything suggesting the existence of an opening in the floor. The jury might, we think,...