Clawson v. Walgreen Drug Co.

162 P.2d 759, 108 Utah 577, 1945 Utah LEXIS 153

• Court: Utah Supreme Court
• Decided: October 23, 1945
• Docket: No. 6824.
• Status: Published

Opinions

WADE, Justice.

Tort action to recover damages for personal injuries incurred when the plaintiff fell after colliding with an open sidewalk door maintained and used by the defendant. The jury returned a verdict in favor of the plaintiff and the defendant appealed.

The defendant, Walgreen Drug Company, a corporation, operates a drugstore in Ogden, Utah. The store is located on the northwest corner of the intersection of Twenty-Fifth Street (running east and west) and Washington Avenue (running north and south). In connection with the operation of this drugstore, the defendant maintains and uses an opening in the sidewalk on Twenty-Fifth Street for the purpose of receiving merchandise into the store basement. This opening is covered by a double iron trap door which locks on the under side and opens upward from the sidewalk. When fully opened the doors stand about two feet high and block the entrance to the opening when it is approached either from the east or west. The opening is against the building on the north and the south end is unguarded when the doors are opened.

On the morning of August 10, 1943, the sidewalk doors were open and unattended. The plaintiff approached the opening. On direct examination the plaintiff testified that he stepped aside to let a woman pass and stepped into the hole. On cross-examination he admitted that he had told his doctor that he bumped into one door and fell against the other one. He also stated that he might have bumped into the door and knocked it down. He was positive that he did not fall down into the hole but stopped at the lid on the other side. One Rufus Southam was called to testify for the plaintiff. On direct examination he stated that the plaintiff came down the street and

“run smack into them doors, ’ * * * ran into them and went right over the top.” “He hit the east door first and knocked that down and hit the other door.”

Plaintiff testified that he had faulty vision and that the opening was in the shadow of an awning used by the defendant to shade the store windows.

By way of numerous assignments of error the defendant contends: (1) That as a matter of law there is no showing that the defendant was guilty of negligence which proximately caused the injuries to the plaintiff; (2) that the plaintiff was guilty of contributory negligence as a matter of law; (3) that the court erroneously permitted the plaintiff to plead and introduce in evidence a certain city ordinance relating to the repair of sidewalk doors and erroneously submitted the said ordinance to the jury as a measure of the defendant’s duty to the plaintiff; (4) that the court erred in various respects in its rulings on admissibility of evidence; and (5) that the court erred in various particulars in its instructions. Contentions Nos. (1) and (3) are interrelated and can best be discussed together.

The ordinance was not limited to requiring that the cellar doors or coverings be kept in good repair but it also required that such doors and coverings be kept safe for the passage of the customary traffic. The Ordinance provides:

“Trap doors and openings in sidewalks regulated. It shall be unlawful for the owner or occupant of any building having a cellar opening upon any street or sidewalk to fail to keep the door or other covering thereon in good repair and safe for the passage of the customary traffic on such street or sidewalk and if the owner or occupant of any such building shall neglect or refuse to properly repair any such door or covering for twenty-four hours after notice so to do, the Street Supervisor or the Chief of Police shall forthwith cause such repairs to be made at the expense of the owner or occupant.” (Italics added.)

In the above quotation we have italicized only those portions thereof that have a bearing on this case. This ordinance means as far as this case is concerned just what it would have meant had the parts not italicized been omitted in which case it would have been a clear provision that occupants of buildings having an opening on the sidewalk must keep the door thereof in a safe condition for the customary traffic thereon. The ordinance uses the words “in good repair and safe,” not “in good repair so that it will be safe,” which indicates an intention to require not only that the doors be kept in good repair but in a safe condition at all times, whether open or closed, for customary traffic. If this were not so, one who was injured because the doors were not kept in good repair could recover, whereas another was injured by doors which were in good repair but which had not been properly closed so that one door projected about one-half inch above the other, could not recover. It is true that the rest of the ordinance emphasizes the keeping of the doors in good repair but that does not take therefrom the positive requirement that it also be kept safe.

The court by its instructions to the jury so construed the ordinance. In substance they were told that if they found that defendant violated the ordinance “by failing to main tain the opening reasonably safe for the passage of the customary traffic on the sidewalk” they should find him guilty of negligence. Under this instruction the jury could only find the defendant negligent on the ground that he did not keep the door of the opening reasonably safe for the passage of the customary traffic on the sidewalk by leaving the door open, unattended and unguarded. This instruction would have been correct under the common law theory of negligence, even if there had been no ordinance.

Any negligence which is disclosed by the evidence must lie in the fact that the defendant left the doors open while not in use. Witness Southam testified that the doors were open when he passed them about 10 :30 a. m.; that he went across the road and sat down on a bench and had been sitting there for about 15 minutes when he saw the plaintiff approaching the area of the sidewalk door. He testified that there were no attendants around the door and that it was not being used in connection with the unloading of any vehicles. This evidence is uncontradicted. It is admitted that the opening through the sidewalk was unguarded except as the open doors obstructed the approach from either the east or west. We can therefore accept as established facts that the doors stood open for at least 15 minutes, unattended and unguarded except by the doors themselves, and that the opening was not during that time in use by the defendant.

In the use of the sidewalk door the defendant had a duty to use the doors with reasonable care so as to not subject others to unreasonable risks of harm. As compensation for the privilege of maintaining a door through the public sidewalk, the defendant had the duty of safe-guarding the opening so as fairly to protect the public in its ordinary use of the street. This public street was open alike to the weak, the lame, the halt and the blind and those, as the plaintiff, suffering from impaired eyesight. The presence of persons with impaired eyesight was reasonably foreseeable. A fall into the opening threatened serious bodily harm. These factors should be taken into account in determining whether or not the defendant exercised the re quisite degree of care. The conduct of the defendant at least presented a jury question on the issue of negligence. Such appears to be the uniform holding of the various authorities. See collection of cases in 70 A. L. R. commencing on page 1358. Whether the open doors themselves furnished a sufficient guard was also a jury question. Bosler Hotel Co. v. Speed, 167. Ky. 800, 181 S. W. 645. The court therefore did not err in giving such instruction.

In contending that the plaintiff was guilty of contributory negligence as a matter of law, the defendant assumes that the law imposed the duty upon the plaintiff to keep his eyes constantly upon the sidewalk in anticipation of open sidewalk doors. Such, however, is not the law. As noted by the annotator in 70 A. L. R. 1358, the traveler on public sidewalk must exercise reasonable care for his own safety,

“but this does not necessarily mean that a pedestrian is required to be constantly watching for openings in the sidewalk. The pedestrian has the right to assume that the sidewalk is in reasonably safe condition for travel, and to act on that assumption.” See also Shearman and Redfield on Negligence, Vol. II, p. 922.

The plaintiff, though under disability, was not necessarily required to exercise such a degree of care as to overcome the effects of the disability. The correct rule is that he must use reasonable or ordinary care for his own safety. In determining what is ordinary care the jury should take into account the physical disability. The care required of a person with defective eyesight is that care which an ordinarily prudent person with defective eyesight would use for his own safety under all the circumstances. Smith v. Sneller, 345 Pa. 68, 26 A. 2d 452, 141 A. L. R. 721, 724, and cases collected therein.

The uncontradicted evidence shows that the opening was in the shadow of an awning maintained by the defendant to shade the store windows; that the plaintiff had impaired eyesight, but that he could have seen the trap door if he “had looked right down.” Whether he used the requisite degree of care for his own safety was a jury question. See the collection of cases in Olson v. City of Butte, 86 Mont. 240, 283 P. 222, 70 A. L. R. 1358, 1388.

The assignments of error relating to the court’s rulings on the admissibility of evidence primarily involve the exclusion of the testimony of two doctors. The plaintiff had objected to testimony on the grounds that it was privileged under Section 104-49-3 (4), U. C. A. 1943, which provides:

“A physician or surgeon cannot, without the consent of his patient, be examined, in a civil action, as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.

One of the doctors, Dr. Dumke, attended the plaintiff when he was first taken to the hospital. The other doctor, Dr. We.pt, took various X-ray pictures of plaintiff’s back and skull. These pictures were taken at the request of Dr. Dumke in the treatment of the plaintiff. The defendant attempted to prove by these two doctors that the X-ray pictures did not show any injury to the bones in plaintiff’s back, but disclosed a pronounced arthritic condition which could have developed as a result of this injury. Upon objection of the plaintiff, the proffered proof was rejected. It is not contended by the defendant that Section 104-49-3 (4) did not apply. Rather the contention is that the plaintiff, by testifying himself concerning the nature and extent of his injuries, waived his privilege.

We have consistently held that the privilege given by Section 104-49-3 (4) is personal to the patient and can be waived. Dahlquist v. Denver & R. G. R. Co., 52 Utah 438, 174 P. 833; Moutzoukos v. Mutual Benefit Health & Accident Ass’n, 69 Utah 309, 254 P. 1005. In contending 7, 8 that the plaintiff did waive his privilege the defendant relies primarily on the Dahlquist case, supra. In that case, on the question of whether or not the patient had waived his privilege under Section 104-49-3 (4) the court was divided three to two. The two dissenting justices were of the opinion that the privilege was not waived. Each of the three prevailing justices wrote an opinion. Two of the prevailing justices, McCarty, J. and Thurman, J., agreed that the patient could testify generally concerning his physical condition, describe the nature and extent of his injuries as he saw and felt them so long as he did not refer to what the doctor may have told him or did for him concerning his injuries. Thurman, J., went further and stated that there was no waiver by the patient in the calling of another doctor to testify concerning the details of his injuries. On petition for rehearing the three prevailing justices stated [52 Utah 438, 174 P. 846]:

“If there are shades of differences in the reasons assigned for the reversal of the judgment in the opinions heretofore handed down, it is sufficient to say, as before stated, we all agree that where a party voluntarily, in a trial of his own cause, states what his physician did and said respecting the injuries which are the subject of litigation, he should not be permitted to close the mouth of the physician when offered as a witness by his adversary solely on the ground of privilege.”

- This quotation gives the full extent of the holding: a patient cannot testify concerning what was said and done by his physician in the treatment of the injuries which are the subject of the litigation and then close the physician’s mouth by claiming privilege. This doctrine was reaffirmed by a unanimous court in Moutzoukos v. Mutual Ben. Health & Acc. Ass’n, 69 Utah 309, 254 P. 1005.

Neither of these cases is in point in the instant case. The plaintiff here did not testify concerning anything which either Dr. Dumke or Dr. West told him nor did he give details concerning the mode of treatment. The plaintiff did not by his own testimony waive the privilege. Nor did the use of Dr. Kerr as a witness for the plaintiff constitute a waiver. Dr. Kerr was subject to cross-examination by the defendant. The X-ray pictures which he testified that he took and which he identified for the court were admitted in evidence. Dr. Dumke and Dr. West were both permitted to see these pictures and to testify in full as to what the pictures diclosed. There was no error in this regard.

The only other assignment of error relating to rulings on the admissibility or exclusion of evidence which we deem it necessary to note relates to the overruling of an objection by the defendant to a question calculated to elicit evidence of loss of earnings. It is objected that loss of time should have been specifically pleaded before evidence on it was admissible. This assignment involves the same basic problem as that raised by the assignment that the court improperly permitted the jury to consider “loss of time” and “impairment of earning capacity” as elements of damage. The assignments may be discussed together. At the outset it should be noted that a distinction is made between loss of earnings and impairment of earning capacity. The former relates to the loss of wages which might have been earned had the plaintiff not been injured. The latter relates to the diminution of earning capacity. The measure of damages for the former may in general terms be stated as the amount the injured person might reasonably have earned in pursuit of his ordinary occupation. The measure of damages for the latter in general terms is the difference between the amount which plaintiff was capable of earning before his injury and that which he was capable of earning thereafter. See in general 25 C. J. S., Damages, §§ 38, 40, 86, 87, 136 and 137. Some jurisdictions hold that before recovery can be had for loss of wages the loss must be specifically pleaded. Hoffmann v. Lane, 11 Cal. App. 2d 655, 54 P. 2d 477; Northern Ind. Public Service Co. v. Robinson, 106 Ind. App. 210, 18 N. E. 2d 933. The same holding has been applied to claims for damage for impairment of earning capacity. See 25 C. J. S., Damages, § 137.

In Littledike v. Wood, 69 Utah 323, 255 P. 172, 173, while apparently recognizing that these items constitute special damages, we held that

“If loss of time or of earnings or impairment of earning capacity naturally and necessarily results from the injuries which are described and of the act complained of, evidence can he given of such loss without specially pleading it. Atwood v. Utah Light & R. Co., 44 Utah 366, 140 P. 137.”

In the instant case the plaintiff did plead that he would

“forever * * * he prevented from attending to and transacting his business or from performing any labor for the remainder of his lifetime to his damage in the sum of Twenty Thousand Dollars * # * H

It is also alleged that the plaintiff was confined to the hospital and incurred an obligation amounting to over $600 for services rendered by the hospital. Under the holding of the Littledike case, supra, this is a sufficient allegation, when taken with the allegations concerning the nature of his injuries, to warrant the introduction of evidence relative to impairment of earning capacity. In the absence of special demurrer it is also probably sufficient to permit evidence as to loss of earnings although it would have been better if specifically pleaded.

Plaintiff’s testimony regarding loss of earnings was merely that he made “pretty good” while trapping and farming and that he made enough money “to spend and run around with and help the folks out.” Plaintiff also testified that he was able, before the injury, to work as a trapper and farmer and that after the injury he could not do such work. Since impairment of earning capacity involves the capacity of the injured person rather than merely what he might have made following his ordinary pursuit, it was not error to permit the jury to consider impairment of earning capacity as an element of damage. This is so although it was not shown with any degree of certainty what plaintiff’s earning capacity had been in the past. The focal point of the inquiry is not what plaintiff actually would have earned, but the difference in his capacity to earn — before and after the injury. As to loss of time as an element of damages the evidence was so. uncertain as to make it impossible for the jury to fix that item of damage with any degree of certainty. There is no evidence as to what the value of plaintiff’s lost time was up to the time of the suit and in view of the fact that there was no evidence or claim by the plaintiff for loss of time, it was error to instruct the jury that it might consider loss of time as an element of damage. However, the possibilty is very remote that the jury did take into consideration the value of plaintiff’s loss of time in computing the damages, or took into consideration more than his general impaired earning capacity. This it could properly do. This error, therefore, was not prejudicial.

One other instruction should be noted: In defining the defendant’s duty the jury was told that defendant was required to make the opening in the sidewalk reasonably safe for customary traffic on the public street and that if the jury found that by reason of the absence of any fence or barrier or other protection on the south side of the trap door the sidewalk was not reasonably safe, it could find the defendant guilty of negligence. As already noted there is no evidence that the failure to have a fence or barrier on the south side of the door in any way contributed to the injury. The plaintiff, according to his own testimony, did not fall into the hole. He bumped into one door and apparently knocked it closed and fell upon the edge of the other door. Witness Southam also so testified. The failure to have a barrier on the south side could have made no difference. The court therefore erred in giving such instruction, but in view of the conclusiveness of the evidence that plaintiff fell over the door and did not step into the hole from the south between the doors, the jury could not have been misled by this instruction, and therefore the error was not prejudicial.

The judgment is affirmed. Costs to respondent.

McDONOUGH and TURNEE, JJ., concur.