Staples v. Senders , 164 Or. 244 ( 1940 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This action was commenced against Eugenia J. Rothschild, who died pending the litigation. Her executors, substituted in her place, have prosecuted this appeal. For convenience of statement, the case will be treated in this opinion as though Mrs. Rothschild was still the defendant and appellant.

The defendant has appealed from a judgment for damages for personal injuries in favor of the plaintiff, based upon the verdict of a jury. Plaintiff's injuries resulted from a fall through an open trapdoor and down the stairway to the basement of a building in the city of Portland. The defendant is the owner of the building, and the particular portion of the premises in which the accident occurred was, at the time, in the possession and under the control of a tenant. Rulings of the Circuit Court denying the defendant's motions for a judgment of involuntary nonsuit and for a directed verdict in her favor are assigned as error. The sole charge of negligence is based upon the failure of the defendant to maintain a railing around the trapdoor and a railing along the upper portion of the stairs leading to the basement. It is asserted by the plaintiff that these omissions constitute both a violation of an ordinance of the city of Portland and a breach of the common law duty owed by the defendant to the plaintiff; while the defendant maintains that the ordinance has no application to the case, and that she, as owner of the building, violated no duty to the plaintiff imposed upon her by the law; and that, even though the proof shows negligence on her part, such negligence was not the proximate cause of the accident, but that the plaintiff's injury was caused by his own negligence, that of the tenant, or of both.

The building where the plaintiff was injured is located on South West Third Avenue, at the corner of Columbia Street in the city of Portland. It consists of three stories and a basement. The ground floor is used for stores, and the two upper floors as a hotel. The accident occurred in one of the stores which was occupied by the defendant's lessee, Mrs. Sarah Herman, who for eight years had conducted there a second-hand and antique business. Photographs picturing the conditions were received in evidence, and from these and the oral testimony we gather that the building faced west, the storeroom was fifty-five feet deep and twenty-two feet wide, and the trapdoor, which was seventy-four inches long and thirty-eight inches wide, was a few feet from the north wall which it paralleled lengthwise, the entrance to the basement stairway being at the east end of the trapdoor, which would be the end nearer to the rear of the room. Except at this end there was apparently no means of easy access to the trapdoor because of the wall on its north side and furniture and other articles of merchandise which partially surrounded it. A person desiring to reach it from the front of the store would walk down an aisle between articles of furniture, tables and cases displaying merchandise, and turn to the left at a large piece of furniture, called in the testimony a commode or chest. After passing this chest he would then be in the space immediately to the rear of the trapdoor, to reach which he would have to reverse his course and walk a short distance toward the front of the store. The trapdoor was composed of two sections of equal width, hinged together, and could be opened either by raising the entire door or the section farthest from the wall. In the latter instance the opening made was nineteen inches wide. When this section was raised it leaned toward the north wall a little beyond the perpendicular. The stairway consisted of ten steps apparently about thirty-five to forty inches in width. On the left side, as one descended, was a railing which extended from the level of the floor to the top of a timber nailed to the lowest step.

The basement was used for the storage of merchandise by the tenant, Mrs. Herman, who testified that she transacted most of her business there. The switch which turned on the basement light was somewhere in the rear of the store.

Mr. Staples, the plaintiff, at the time of the accident was eighty years of age. He was a resident of Tillamook where he practiced optometry, but had formerly engaged in the jewelry business, as well, both in Tillamook and at Portland. He knew Mrs. Herman, and had been in her shop many times before to make purchases, although as he testified, he had never before been in the basement. He came to her shop on the afternoon of March 21, 1938, accompanied by Mrs. Staples, to buy a clock. Mrs. Herman said that she wished him to look at some rugs, and for that purpose she and Mr. and Mrs. Staples went to the basement by means of the trapdoor and stairway, which have been described. Mrs. Herman opened the trapdoor by raising the hinged section. They remained in the basement a few minutes and then returned to the first floor, the plaintiff leading the way. The trapdoor remained open. The plaintiff then began to count a large number of clocks which were on display, with the idea of buying them all. These clocks were ranged on shelves and on the north wall of the room. After counting those at the front he went by the route which we have described to the space at the rear of the trapdoor, and was moving sidewise towards the front of the store, facing the wall and counting the clocks as he proceeded, when he fell into the opening and plunged down the stairs to the basement floor. The plaintiff's account of the accident, as given by him on direct examination, is as follows:

"A. I counted the clocks and I then went down along the line, because there was clocks at the back end of the store, and counted the clocks right along the wall and got down at this end, and looking up I kind of — sort of fell sideways down this open space. There wasn't anything for me to catch on to.

"Q. Did you try to catch on to something?

"A. Oh, yes. Oh, yes. And if I could have caught on to anything I could have saved myself.

"Q. Now at the time that you fell you say you fell down the stairs sort of sidewards?

"A. Sort of about like that (illustrating). I had got to the back end of the store and was going front. This was — this wasn't light, you know, because that — it was all covered up in front. It was sort of a aisle.

"Q. What did you do, Senator, when you felt yourself starting to fall? What did you do, if anything, with reference to trying to catch yourself or break your fall?

"A. I threw out both hands. The door was slanting. My hands went down like that on that side of the door (illustrating), and there was nothing here to catch on to at all."

On cross-examination the plaintiff testified that the place was not light, but he did not know whether that would have made any difference because "I was looking at this wall all the time counting clock". Other statements made by him on cross-examination are these: "I was counting clocks up there. I wasn't looking down". "I don't think I noticed a trapdoor there". "I took it for granted that door was closed. I didn't know whether it was. I didn't pay any attention to that, didn't think about that, hadn't my mind on that. My mind was on those — counting those clocks on the wall." In answer to the question whether it was light in the trapdoor, he said: "You could have seen the hole. If I had looked, I would probably have seen the hole."

Mrs. Staples was in the front of the store at the time of the accident and knew nothing of it until she heard the sound of her husband's fall. Mrs. Herman testified, though in this she was contradicted by Mrs. Staples, that she was within a few feet of the plaintiff when he fell and tried to catch him but was unable to do so. She further testified, without contradiction, that she turned on the light before the three of them descended to the basement and that the light was still on when the plaintiff fell. In some important particulars, her version of the occurrence differed from the plaintiff's but as the case must be viewed in the light most favorable to him, her testimony need not be detailed.

The building was constructed in the year 1890. In the year 1935 a fire occurred which damaged the trapdoor and basement stairway, and the defendant, evidently acting in pursuance of the stipulations of the lease to Mrs. Herman, repaired the damage. The stairway was rebuilt, the trapdoor replaced, and around it new flooring was put in. The cost of this work was $574.86, approximately five per cent of the value of the building.

The ordinance pleaded by the plaintiff is the Building Code Ordinance No. 33911 of the city of Portland, which was passed by the City Council on March 13, 1918. It provides in part:

"Section 66. The regulations covering the erection of buildings as given in this code shall apply to buildings hereafter erected and shall apply, under certain conditions, to buildings altered and repaired as covered in Sections 68 and 69."

"Section 69 (a) A building which is repaired to an extent exceeding 60 per cent of its value (not deducting from such value any loss caused by fire) in any period of six (6) months, shall conform to all of the regulations governing the erection of a new building.

"(b) In the repair of any portion of a building not covered by paragraph ``a', the work done shall as far as is practical, improve the conditions or conform to the code except the roof covering shall not be repaired to an extent exceeding 40 per cent in a period of twelve (12) months unless the entire roof is changed to conform to the code."

"Section 516. All stairways over three (3) risers in height shall have a substantial railing along the outside of same and if stairs are over four (4) feet or more in width, a railing shall be provided on both sides. Substantial railings shall be provided for well holes of stairs and all handrails to be used by the public shall be at least thirty (30) inches in height measured vertically in the center of treads or in the center of platform landings." Numerous questions have been argued touching the liability of a landlord to an invitee of a tenant injured on the demised premises, and as to the construction and applicability of the ordinance pleaded and relied on by the plaintiff, none of which we find it necessary to discuss or decide, because we are of the opinion that if the defendant was guilty of any negligence, either under the common law or by reason of failure to comply with the ordinance, such negligence was not the proximate cause of the plaintiff's injury.

If the ordinance be given the construction placed upon it by the plaintiff, it was the defendant's duty, when she made the repairs after the fire in 1935, to provide railings at the trapdoor and a railing along the stairway extending above the floor, instead of one which came only to the floor level. The only negligence pleaded, or of which there can be said to be proof, consists of these omissions, and for present purposes it makes no difference whether such negligence be treated as a violation of the ordinance or the breach of a common law duty. It is not contended that the ordinance requires a railing at the entrance to the stairs. That it does not, was admitted on the argument by counsel for the respondent, and this admission accords with a sensible construction. The ordinance applies, generally speaking, to all stairways in all the buildings in the city of Portland, and it would be a patent absurdity to hold that the City Council intended that property owners must place barriers at the heads of stairways and so interfere with their convenient use. As to the railing along the stairs, the only complaint made is of the failure to prolong it above the level of the floor. This, we think, is required in those cases where the ordinance applies. It is not contended that there should have been more than one stair railing or that the one provided was placed on the wrong side of the stairway.

The plaintiff was proceeding sidewise examining the clocks on the wall, when he fell into the opening at the entrance to the stairs. No railing was required at this point, and the absence of railings on the other three sides of the opening obviously had nothing whatever to do with the accident. If authority were needed for this conclusion it may be found in the case of Torpeyv. Sanders, 248 App. Div. (N.Y.) 303, 305, 289, N.Y.S. 532. With respect to the stair railing, the only claim possible to be made of causal connection between the failure to build it in the manner the ordinance enjoins and the accident which befell the plaintiff, must be based on his testimony that, after he started to fall, he tried to catch hold of something, and that if he could have done so he would have broken his fall, and so have saved himself. In fact, no other theory has been urged by the plaintiff. It might be difficult to build a solid or dependable determination of fact on that possibility under any circumstances. The accident occurred when the plaintiff, evidently unaware that the trapdoor was up or that he was close to it, his mind and eyes wholly intent on the clocks he was examining, plunged suddenly into the opening. Had the railing been extended upward from the floor he would have plunged just the same. This no one disputes. What might have happened thereafter under different circumstances, had the railing been extended as it is claimed it should have been, would seem to be too conjectural to be considered as evidence. But, under the facts of this case, this is not even a matter for conjecture. Mr. Staples was facing the wall, with his back to the left side of the stairway along which the railing was built. When he fell and threw out his hands they came into contact, according to his testimony, with the open trapdoor, which was raised and slanting away from the floor on the opposite side. Doubtless he acted instinctively, as a man usually does when he falls into a sudden and hidden danger. It would be fantastic to think that he looked about for a handhold, or could have done so. As he states, "he threw out both hands". His back was to the stair railing, and had it been constructed in all respects in accordance with all the requirements of the ordinance, his hands would still never have grasped it. Its absence neither caused him to fall nor was it in any way a factor in the ensuing consequences.

The rule is universally recognized that in order to impose liability for an injury claimed to be the result of a violation of a statute or ordinance "it must appear that compliance with the statute or ordinance would have prevented the injury" or "it may be shown as matter of defense that compliance with the statute or ordinance would not have prevented the injury complained of in a particular case"; 45 C.J., Negligence, 904, § 479; 1 Shearman and Redfield, Negligence, 6th Ed., 51, § 27. The rule with respect to failure to perform a common law duty is not different: Eklof v. Waterston, 132 Or. 479, 285 P. 201, 68 A.L.R. 1002; Ring v. City of Cohoes, 77 N.Y. 83, 33 Am. Rep. 574; Restatement of Law of Negligence, §§ 431, 432; 45 C.J., Negligence, 904, § 479. As stated by Professor Beale in 33 Harvard Law Review 633, 637, and quoted with approval in Eklofv. Waterston, supra:

"Where the act is the failure merely of a legal duty, causation is established only when the doing of the act would have prevented the result; if the result would have happened just as it did whether the alleged actor had done his duty or not the failure to perform the duty was not a factor in the result, or, in other words, did not cause it."

A case closely analogous on the facts and tending to support the view we have taken here is Gibson v. Hoppman,108 Conn. 401, 410, 143 A. 635, 75 A.L.R. 148. The plaintiff fell down a stairway which she was descending. One ground of negligence charged was the failure of the defendant to light the stairway, and another that no handrail was provided. The plaintiff testified that she kept her right arm against the wall to guide her as she passed down the stairs and fell as she reached a turn. The court held that on the former charge a jury question was presented, but that the jury could not reasonably have found that the defendants were guilty of a breach of duty in failing to provide a handrail or that its absence was a proximate cause of the plaintiff's fall. Other cases illustrating the principle and more or less analogous are Iudica v. DeNezzo,115 Conn. 233, 161 A. 81; and Wartik v. Miller, 48 Ohio App. 494,194 N.E. 433.

Whether plaintiff was guilty of contributory negligence in passing along the floor without keeping a lookout; whether Mrs. Herman's conduct in leaving the trapdoor open and failing to warn the plaintiff, constituted negligence on her part, it is unnecessary to determine. But certain it is, under the undisputed facts in the record, that it was one of these acts, or both of them concurring, whether negligent or otherwise, and not the failure of the defendant to comply with the ordinance, which was the proximate cause of plaintiff's injury: Whisler v. U.S.National Bank, 160 Or. 10, 82 P.2d 1079, and Lewis v. Jake'sFamous Crawfish, Inc., 148 Or. 340, 36 P.2d 352. The absence of a railing was, as Mr. Justice RAND said in the Eklof case, "only a condition or circumstance surrounding the happening of the accident".

Since the evidence shows that one of the essential elements of a cause of action based on negligence is lacking in the plaintiff's case, the Circuit Court erred in denying defendant's motion for a directed verdict, and the judgment in favor of the plaintiff must be reversed and one entered for the defendant. It is so ordered.

RAND, C.J., and KELLY, BELT and BEAN, JJ., concur; ROSSMAN and BAILEY, JJ., not sitting.