Malolepszy v. Central Market, Inc. ( 1942 )

Messmore, J.

The plaintiff brings this action against the Central Market, a corporation, for personal injuries alleged to have been sustained by him in falling down an elevator shaft on the premises of defendant Central Market (hereinafter referred to as defendant).

Plaintiff’s petition alleges that on October 27, 1940, at about 10:15 a. m., as an employee of Walter E. Harkert’s restaurant, located at 1619 Farnam street in Omaha, Nebraska, he was directed by the manager to go to the Central Market to purchase meat; that he entered the business establishment of Central Market, located at 1608 Harney street, through a rear door, which he alleges was one of the regular and customary places of entering defendant’s place of business; that he was an invitee on defendant’s premises, and in walking from the rear toward the front of the store he walked into an open elevator shaft located 20 or 30 feet south of the rear entrance of the market and fell into the shaft, injuring himself, detailing his injuries; that the front of the Central Market was closed, but that ft was the regular and customary occurrence for the plaintiff and his employers to enter the defendant’s place of business from the rear and to proceed to the wholesale meat department for the purpose of purchasing meat; that the elevator shaft was poorly lighted and plaintiff by reason thereof failed to see the shaft. He further alleges that there was a wooden gate which ordinarily guards the opening of the' shaft, not automatically operated; that at the time he fell this gate was up and not in its regular position ; that the elevator was on the second floor and its gate was not lowered to its regular position to keep persons, and particularly this plaintiff, from walking into the pit. Plaintiff charges the defendant, its agents and servants with negligence in failing to keep. its premises in the vicinity of the elevator properly and sufficiently lighted; in failing to place the safety gate across the elevator shaft and •pit when the elevator was not on the floor level; in moving the elevator from the floor level to the floor above; in failing- to prevent persons, and particularly this plaintiff, from walking- into the elevator pit; in failing to warn this plaintiff and other persons rightfully on the premises that the elevator shaft was open and unprotected; and in maintaining a trap and pitfall without properly lighting and guarding it to prevent persons, and particularly this plaintiff, from falling into it.

Defendant Central Market admits its corporate capacity and that plaintiff was an employee of Walter E. Harkert; denies generally the other allegations of the petition, and . for further answer denies that the rear door was a regular and customary place of entering- its place of business; alleges that plaintiff was not an invitee under the circumstances, and that the door through which he entered was not for the use of customers or the public, but that such entrance opened into a loading platform and into' an elevator room, used exclusively by defendant in its business, and not in furtherance of the sale of its merchandise, either wholesale or retail, and was separate and apart from that part of the business, used by the defendant for transacting business with its customers; that on Sunday, October 27, 1940, the store was closed, and at no time, either when the store was closed or open for business, was said entrance used by the customers or the public to gain entrance either to the retail or wholesale department; alleges negligence on the part of the plaintiff, and that at the time of the accident he was a trespasser on defendant’s premises.

The answer of defendant Harkert prays that he be subrogated to the rights of the plaintiff to the extent of $546.55, and that upon judgment in favor of plaintiff this judgment be paid by reason, of the rights of subrogation set forth.

The Central Market operates a retail grocery and wholesale and retail meat market in connection therewith, and is directly across the alley from Harkert’s restaurant. At about 10 o’clock on the morning of the accident, the plaintiff, dressed in his restaurant uniform, reported for duty and was directed by the manager to go to the Central Market to obtain some sausage patties. The wholesale meat department of the Central Market is located in the northwest corner of the building and is partitioned off from the retail business. The entrance to the wholesale meat department is located at the west end of the building, and the entrance to the loading dock or elevator room, the scene of the accident, was in the east end of the building. There is a room used for storage adjoining the wholesale meat department in the back of the store. No business is transacted in this room. Through this back room to the northeast corner of the building is an elevator room which is partitioned off on its east and west side, and there is a door leading into the elevator room from the south and an iron door to the north, which leads into the alley. The west door into the wholesale meat department is about a foot from the level of the ground. The east door, through which the plaintiff proceeded, is a sliding door that slides up and down and is built up from a platform.

On occasions, certain customers of the Central Market were privileged to obtain merchandise on a Sunday either by calling or coming to the store. This merchandise had been furnished the Harkert restaurant on a few occasions on Sunday. When employees of the restaurant went to the Central Market to procure merchandise they would go to the west door and would rattle it in an attempt to attract attention in the market. Failing on one occasion, an employee went to the front door and was admitted. There is no evidence that any Harkert employee had ever entered the east door into the elevator room on any other occasion than the morning in question, when a colored man, who was picking up some trash to haul in his own truck, and who was close to the east door, observed the plaintiff at or near the west door and called to him to come around and call the elevator man. This caused the plaintiff to enter the east door from the loading platform and proceed about 20 feet, resulting in his falling into the elevator shaft and injuring himself; the elevator had been taken to the second floor; the picket gate was not in front of the elevator shaft; the gate on the other side being down, the plaintiff thought the outer, protecting gate was the gate in front of the elevator shaft as he walked toward it. There was a light in the room, one in the adjoining room, and a light in the elevator which had been taken to the second floor. Upon hearing the plaintiff call for help, the colored man went to his rescue. Subsequently, the manager of Harkert’s obtained the sausage by entering the same door of the Central Market through which the plaintiff went.

The case was submitted to. a jury and a verdict rendered in favor of plaintiff in the sum of $5,583.77. From this vedict and judgment thereon and the overruling of a motion for a new trial, defendant Central Market appeals to this court.

We have set forth the substantial and material facts. At the close of all the evidence defendant moved for a directed verdict which was denied by the court. In this connection the rule is:

“A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor, and- to have the benefit of every inference that can reasonably be deduced from the facts in evidence.” Moncrief v. Interstate Transit Lines, 129 Neb. 168, 261 N. W. 163.

The question is whether Or not the court erred in overruling defendant’s motion to dismiss the action or to instruct the jury in favor of the defendant, made at the close of the plaintiff’s evidence.

While the factual situation in cases of this kind, vary to a considerable extent, we believe, under the circumstances of this case and from a review of the record, that the holding in Wright v. Salvation Army, 125 Neb. 216, 249 N. W. 549, is applicable. In that case this court held:

“The liability of the owner of the premises to an invitee who enters thereon is only coextensive 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 wilfully injurious.”

And in Collins v. Sprague’s Benson Pharmacy, 124 Neb. 210, 245 N. W. 602, it was held:

“The duty which a merchant owes his customers, with respect to the safety of the premises, applies particularly to that part of the premises which is appointed for the transaction of his business.

“Where one, at his own request, and solely for his personal pleasure, convenience, or benefit, enters upon the private portion of the business premises of another, with his consent, but without an invitation, he is a bare licensee in such portion of the premises not open to the public, and the occupier of the premises owes no duty to him, save to refrain from inflicting injury upon him.”

From the record it is clear that the purpose of the east door into the Central Market was to take out and bring in merchandise for the benefit of the market itself. It was a loading and unloading place, and not a part of the premises wherein merchandise was sold, or where the public was invited to enter for the purpose of purchasing meat, either retail or wholesale. It is partitioned off from the business part of the premises, and there is not a scintilla of evidence that on this or any other occasion plaintiff was invited to enter the Central Market through the east door. The burden is on the plaintiff to show that he was invited on the premises for the purpose of transacting business, and he must carry this burden by a preponderance of the evidence. He has failed to show such fact. All of the evidence is clear that, in obtaining meat or other merchandise on occasions of emergency, the customer so obtaining it went to the front door of the Central Market or to the west door leading- into the wholesale meat department.

We have taken cognizance of the principle of law, cited by the plaintiff from Restatement, Torts (Negligence), sec. 343 b., but find that in an analysis thereof, together with other authorities cited by the plaintiff, the facts in the instant case do not meet the situation as set forth in such authorities. We will not unnecessarily lengthen the opinion by setting forth plaintiff’s authorities in this respect.

The colored man, who called to the plaintiff to come around to the east door and call the elevator man, had no authority, express or implied, to invite any person into the Central Market for the purpose of transacting- business. He worked independently and separately and for his own benefit, hauling débris from this market and from other places. The facts and circumstances are directly opposed to the plaintiff’s contention that he was an invitee.

We are obligated to conclude that the motion of defend- . ant Central Market for a directed verdict at the close of the evidence should have been sustained. In view of this con- ■ elusion, it is unnecessary to consider other assignments of error.

The judgment on the verdict is reversed and the cause dismissed.

Reversed and dismissed.