Brusseau v. Selmo ( 1938 )

I am not in accord with the views of Mr. Justice McALLISTER. Additional facts show that plaintiff visited defendant's place of business about a quarter after eleven on the evening in question and after making inquiries of the waitress, was directed to the door leading down to the toilet in the basement. As he opened the door to go down into the basement, the light from the store was sufficient to see the railing and the electric light switch which was on the same wall as the railing and two feet above. Before proceeding down stairs, plaintiff partly closed the door, leaving only sufficient light to show the railing. As he proceeded he could see a dim light at a distance from the bottom of the stairs. The stairway was not lighted owing to plaintiff's failure to turn on the electric light and partly closing the door.

The general rule relating to the duty of persons proceeding down stairs in public or semi-public places is well stated inBlankertz v. Mack Co., 263 Mich. 527, 533, where we said:

"This court is definitely committed to the holding that one going about in public places or semi-public places when possessed of his natural faculties may not escape being charged with negligence if he is heedless of his own safety. If he fails to use the care that an ordinarily careful person would have used in like surroundings, and in consequence sustains injury, he must bear his own misfortune."

In Hudson v. Church of the Holy Trinity,250 N.Y. 513 (166 N.E. 306), plaintiff went to the premises of defendant to transact some business and while there made inquiry as to the location of the toilet and was told to go down stairs. She testified, "I went down and everything was in perfect darkness. I did not open the door but I pushed it and I went in and went down." She felt her way through the darkness to the end of the hall, pushed open the cellar door and fell down stairs. The court said:

"Plaintiff's duty in the circumstances was to look out for herself and not feel her way where it was 'so black and dark that she could not see anything.' She should have refrained from proceeding down the unlighted hallway in unfamiliar surroundings without finding out where she might safely go. She elected to feel her way along in the darkness. She was guilty of contributory negligence as a matter of law."

In Hammer v. Liberty Baking Co.,220 Iowa, 229, 236 (260 N.W. 720), the court said:

"While it is true, as we have assumed, that the plaintiff was an invitee upon the premises of the defendant and this imposed upon the defendant the duty to keep its premises in a reasonably safe condition and to warn plaintiff of latent or concealed perils, yet that relation did not entitle the plaintiff to act heedlessly in total disregard of his own safety. His duty in the circumstances was to look out for himself and for his own safety. When he opened the door to the elevator shaft he was met with absolute darkness. He says he could not see anything. In addition to this he was met with the gate or wicket barring his progress. There was no emergency or occasion for haste, and apparently without thought or hesitation, investigation or knowledge of what was concealed by the darkness, and with no thought or consideration as to the purpose of the gate or barrier, he deliberately stepped into the darkness and fell to the bottom of the shaft. The darkness alone should have been a natural warning to him, and in addition to this he met the obstruction or gate barring his further progress. * * * The existence of the total darkness and of the gate or barrier should have warned him to proceed no further without investigating what was beyond. He did not even try to discover what was beyond the elevator door and gate. If he was unable to see, such inability imposed upon him the duty to exercise the greatest care and refrain from proceeding further without finding out if he could safely do so.

"The plaintiff was clearly guilty of contributory negligence in failing to use that prudence and ordinary care which was incumbent upon him under the circumstances confronting him."

See, also, Du Rocher v. Teutonia Motor CarCo., 188 Wis. 208 (205 N.W. 921, 42 A.L.R. 1094);McVeagh v. Bass, 110 Pa. Super. 379 (168 A. 777, 171 A. 486); Kurre v. Graham Ship By TruckCo., 136 Kan. 356 (15 Pac. [2d] 463); Benton v.Watson, 231 Mass. 582 (121 N.E. 399).

In the case at bar, plaintiff had notice of the darkened hallway. He could have had more light either by turning on the "switch" or leaving the entrance door wide open, or by both. His failure to make use of appliances that would have lighted the stairway precludes his recovery.

The judgment is reversed, with costs to defendant.

WIEST, C.J., and BUSHNELL, POTTER, and NORTH, JJ., concurred with SHARPE, J.