Williamson v. Neitzel , 45 Idaho 39 ( 1927 )

Plaintiff brought this action against defendant to recover damages for personal injuries sustained by him by reason of falling through an open elevator shaft in a building occupied by defendant. Judgment was for plaintiff, in the sum of $500, and defendant appeals.

It is shown by the pleadings and proof that defendant conducted a general automobile sales, supply, repair and garage business in a two-story building, with basement, located at the northeast corner of Tenth and Front Streets in the city of Boise. Storerooms in the northwest and southwest corners of the building were leased to other parties, leaving entrances to defendant's place of business on Tenth Street and Front Street. The Tenth Street entrance opened into a salesroom, where automobiles were displayed for sale, the right rear portion of which was used for an office and bookkeeping department, and a space at the left rear (from the Tenth Street entrance) inclosing an elevator shaft. A freight elevator within the shaft was used mainly for transferring automobiles and other articles from one floor to another. That part of the building with an entrance on Front Street was used for the storage of automobiles, for the display of small accessories for sale, and as a means of ingress and egress to the repair-shop, also to the basement and second floor. On the westerly side of the storeroom was a door leading into the office and salesroom, a stairway leading to the second floor, and just beyond the stairway the elevator shaft, the easterly entrance to which was flush with the westerly wall of the storeroom. The elevator shaft was about ten feet wide and extended back into the salesroom a distance of about twenty-two feet. The entrance to the shaft from the salesroom was inclosed by glass wire doors, and that end of it in the storeroom was equipped with a gate, working in slots, so designed that when the elevator was raised to the second floor the gate, which had to be raised manually to place cars on the elevator, should descend and close the entrance to the elevator shaft on the first floor.

On the morning of December 24, 1923, at about 10:30 o'clock, plaintiff entered defendant's place of business from the Front Street door, leading into the storeroom, desiring to purchase a piece of windshield glass. Looking for someone to wait on him, plaintiff walked toward the rear of the building, then came back toward the front and looked into the office. He saw no one, but about that time heard voices and a noise like someone working in the back of the building, and he started that way again, along an open passageway in about the center of the storeroom, which turned to the left about half the distance between the front and rear of the building. The passageway, after turning to the left, appeared to be closed at the far end by two glass doors, and going in the direction of these doors plaintiff stepped off into a hole, which happened to be the elevator shaft, and was injured. Plaintiff testified that it was a cloudy day, that the passageway was very dimly lighted, that there were no electric lights burning in the building or in the elevator shaft that he remembered, and that he did not encounter any obstruction in walking into the shaft. On account of the dimness of the natural light, and shadows along the floor, plaintiff said there was nothing which led him to believe that the floor was interrupted or ceased to exist at a certain point in the passageway.

Defendant here takes the position that the evidence shows that plaintiff was guilty of contributory negligence, in that at the time of the accident he failed to exercise due care and acted without due caution in proceeding into the elevator shaft, and that had he been in the exercise of due caution and acted as a reasonably prudent man he could have seen and would have seen the elevator shaft, and avoided falling therein.

We think it may first be premised that plaintiff was an invitee of defendant in the latter's place of business, and not a mere licensee. Defendant maintained a general automobile sales, supply, repair and garage business, and impliedly invited the public therein for the purpose of dealing with him in any line of the business which he conducted, and owed a duty to persons entering his premises for such purpose of maintaining the same in a reasonably safe condition and of exercising reasonable care in protecting such persons from injury. (20 Rawle C. L. 66; Chichas v. Foley Bros. Grocery Co.,73 Mont. 575, 236 P. 361.) This duty on the part of the proprietor to exercise reasonable care toward an invitee would apply only to that particular portion of the premises as were used for the actual conduct of the business (20 Rawle C. L. 66, 67), but whether or not an injury occurred upon the premises covered by an invitation is a question for the jury. (19 Cal. Jur. 622.) In this connection, the record before us shows that plaintiff went into defendant's building from an open door leading immediately into what was called the service department, and that it was from such part of the building that he would have to gain access to the department where the article he desired to purchase was likely to be kept. Plaintiff had never been in the building before and was unfamiliar with the arrangement of the various departments therein (which distinguishes this case from the holding in Gaffney v. Brown,150 Mass. 479, 23 N.E. 233), and it was while looking for someone to serve him that he walked along an unobstructed passageway and into the unguarded elevator shaft.

A general definition of what constitutes contributory negligence is that it is the doing, or the omitting to do, that which under the circumstances a reasonable man would not have done, or would not have omitted to do, to avoid any injury resulting to himself from the negligence of the defendant. Contributory negligence is generally a question of fact for the jury, and in order to hold that this case should have been taken from the jury and defendant's motion for nonsuit granted, would require us to say that the evidence herein is reasonably susceptible of no other interpretation than that the conduct of plaintiff contributed to his injury, and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under like circumstances. (Bressan v. Herrick, 35 Idaho 217, 222,205 P. 555.) It is a well-settled rule in this state that a person injured will not be precluded from recovery on the ground of contributory negligence, unless it was such that upon consideration of all of the facts and circumstances as they appeared at the time, a reasonably prudent person would not have acted as did the injured party; and only when it appears upon the undisputed facts that a reasonably prudent person would have acted differently does it become a question of law. (Osier v. The Consumers' Co. 41 Idaho 268, 239 P. 735.)

Under the facts and circumstances in this case the questions of whether or not plaintiff was guilty of contributory negligence, or exercised or failed to exercise, reasonable care and prudence while in defendant's place of business, and whether or not, when injured, plaintiff was in that part of defendant's premises to which his invitation extended were questions for the jury and were properly submitted to it; and being further of the opinion that the evidence is sufficient to support the verdict of the jury thereon, the judgment is affirmed. Costs to respondent.

Wm. E. Lee, C.J., and T. Bailey Lee, J., concur.

Givens, J., disqualified.