Wright v. Army
| Decision Date | 12 July 1933 |
| Docket Number | 28578 |
| Citation | 249 N.W. 549,125 Neb. 216 |
| Parties | MARION D. WRIGHT, APPELLANT, v. SALVATION ARMY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: FRED A. WRIGHT JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Where a person enters the building of a charitable institution at its invitation for the purpose of conducting a business transaction with the officers and employees of said institution and not for the purpose of charity, said institution is liable for injuries caused by negligence for failure to keep the premises in a reasonably safe condition.
2. The liability of the owner of the premises to an invitee who enters thereon is only co- extensive with the invitation, and when the limits of the invitation are exceeded the invitation ceases, and the duty of the owner is only that of abstaining from acts willfully injurious.
3. One who walks into an open elevator shaft, on premises with which he is familiar, without looking to see whether the elevator has been moved, is guilty of gross contributory negligence and cannot recover for injuries thereby sustained.
Appeal from District Court, Douglas County; Wright, Judge.
Action by Marion D. Wright against the Salvation Army, a corporation. From an adverse order and judgment, the plaintiff appeals.
Affirmed.
A. M Morrissey and James H. Hanley, for appellant.
Emmet L. Murphy and Harry W. Shackelford, contra.
Heard before GOSS, C. J., EBERLY, DAY and PAINE, JJ., and BEGLEY, LANDIS and MEYER, District Judges.
This is an action brought by Marion D. Wright against the Salvation Army to recover damages for personal injuries, alleged to have been sustained by the plaintiff through the negligence of the defendant when he fell through an unguarded elevator shaft in the four-story brick building owned, operated and controlled by defendant in the city of Omaha.
The answer of the defendant admitted its corporate existence; its ownership of the building; alleged that it is a religious and charitable corporation, and charged defendant with contributory negligence.
At the close of the testimony in the trial court, the defendant filed a motion for a directed verdict on the ground that defendant is exclusively a religious and charitable institution and that at the time of the injury the plaintiff was a direct participant in and beneficiary of the defendant's charitable activities; that the plaintiff was guilty of contributory negligence which was, as a matter of law, more than slight as compared with any negligence of the defendant, and that the plaintiff was not an invitee but a mere trespasser on the premises of the defendant, which motion was overruled, and the jury returned a verdict for the plaintiff for fifteen hundred dollars.
A motion for a new trial was filed, and the court thereafter, being of the opinion that it erred in overruling the motion of the defendant for a dismissal of the cause of action or a directed verdict on its own motion vacated said judgment, and the verdict of the jury was set aside, and the court then sustained the motion of the defendant, made at the close of all of the testimony. The cause was dismissed with prejudice, from which order and judgment the plaintiff has appealed.
The evidence discloses that the defendant, a religious and charitable corporation, was the owner of a four-story brick building located at the northeast corner of Thirteenth street and Capitol avenue, in the city of Omaha. The defendant maintained a workingmen's hotel in said building, and said hotel lobby, together with its private office and certain storage rooms in the conduct of its charitable and religious work, were on the ground floor. The building faced the west, where a door opened into a hall or vestibule next to the private office and then a private passageway led toward the east where a rag room was situated where the defendant gathered rags for sale and also paper for baling in a baling room. To the north of this passageway and west of the rag room, in a small compartment walled on the east and west sides, was a hydraulic elevator, used for hoisting material from the basement to the first floor. This elevator stood plumb with the floor and had no guard or side rails.
The plaintiff was a rug weaver in the city of Omaha, and in September, 1931, went to the defendant's place of business and arranged to purchase old clothing and rags to use in his rug weaving business. Commandant Case, in charge of the defendant's business, took the plaintiff to the back part of the building on the first floor, in what is called the rag room, and told him to select such material as he desired. The plaintiff, desiring to select certain rags asked permission to select the same himself, and it was agreed that he was to do so and have them weighed by the clerk in his office and pay the clerk five cents a pound therefor. He was invited by Commandant Case to come back again and make further selections and pay accordingly. This he did on several occasions, always being escorted to the rag room by the commandant or other employees by the south passageway. On October 14, 1931, the plaintiff returned for more rags and, instead of going to the office to notify the commandant, entered the building and went to the back part thereof, but instead of going through the straight passageway, he walked around the elevator partition to the north, then entered the elevator compartment and came back again over to the elevator to the south, then east and entered the rag room immediately north. In going to the rag room, the plaintiff, after passing over the elevator, disconnected an electric light bulb and took the same to the rag room in order to secure better light. In returning from the rag room he took the same general direction as in coming in, and in passing through the elevator space he fell down the shaft from which the elevator had been removed...
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