ROBB, Associate Justice.
This appeal is from a judgment in the Supreme Court of the District for the plaintiff, appellee here, in an action for damages growing out of injuries sustained by the plaintiff in falling down a dumb-waiter shaft in defendant’s dwelling house.
At and for about five weeks prior to the time of the accident, plaintiff had been employed by the defendant in defendant’s home in this city, exclusively as a nursery governess. The house, in which defendant had resided for several years, was of the English basement type and four stories in height. Plaintiff’s duties were chiefly confined to the third floor, where she slept in proximity to the children, and in the front part of this floor was located defendant’s sleeping apartment. There were two stairways leading from the third to the fourth floor; one stairway being in about the center of the house and the other in the rear. In the front part of the fourth floor were playrooms for the children, but plaintiff always had used the center stairway in gaining access thereto. The dumb-waiter was in an inclosed shaft extending from the first to the fourth floor, and was equipped on the different floors with ordinary doors, “just the same as any other door leading into á room.” Plaintiff knew that between the door on the third floor and the shaft was a gate that extended across the opening, but prior to the accident she had never used the rear stairway on the fourth floor, and there is no evidence tending to show that she knew the location of the dumb-waiter on that floor. Indeed, the evidence fails to show plaintiff even knew that the dumbwaiter extended to the fourth floor. In this connection defendant testified that plaintiff “had nothing to do with the elevator whatsoever.” The door to the dumb-waiter shaft on the fourth floor was about three feet distant from and directly opposite the top step or landing of the back stairway, and, unlike the third floor, was equipped with no gate. The door on this fourth floor was supplied with an ordinary knob, and had a lock and key; the key always being left in the lock.
On the night of the accident defendant had been out and returned home some time between 10 and 11 o’clock. Plaintiff was in the sewing room, where she had been all the evening. This room was between the front stairway and defendant’s room. According to plaintiff’s testimony, which does not differ materially from that of defendant, after some casual remarks, plaintiff inquired of defendant, “Can I do anything for you?” Defendant replied, “Well, I have been ringing and ringing and ringing. Could you 'call or find’ Hugh” (the second butler). Plaintiff then asked, “Where do you think he would be?” and defendant answered, “He is not downstairs; he may be in his room.” Plaintiff responded that she would see what she could do “and went to call the man”; defendant going to her room. On this point defendant testified that plaintiff, when defendant came in, inquired if there was anything plaintiff could do for her, to which defendant replied that all the lights were on; that she had been ringing the bell, but no one answered. She then inquired of plaintiff if plaintiff knew where Plugh was. Defendant further testified as follows:
“Plaintiff answered that she did not, and defendant said, ‘Will you be good enough to call him?’ Plaintiff said, ‘I will go and get him;’ and witness [307]*307replied, ‘Don’t bother to go; fust call. As he is not in the pantry, and not downstairs, ho may be in his room.’ ”
The man’s room was in the servant’s quarters, in the rear part of the fourth floor. Plaintiff had not been in the back part of the house on the fourth floor, “and there was a door that shut it off” from the other part of that floor. She “did not know actually where his [Hugh’s] room was,” but did know that the help slept on the fourth floor, and “had seen them come up and down the back stairway.” Plaintiff went to this stairway, opened the swinging door, and called to Plugh several times. 'Receiving no response, she proceeded up the stairway, which was in darkness, and when she reached the top stair (but a step from the elevator shaft door) endeavored to find an electric bulb, and, while doing so, continued to call without result. Her hand came in contact with a door handle or knob; the door being ajar. She opened the door, and, as she took a step forward, called again, and fell down the dumb-waiter shaft, receiving serious and permanent injuries. As she expressed it:
“1 had trodden into the dumb-waiter, which I had not realized was there.”
The evidence for the defendant was to the effect that she had cautioned plaintiff to keep the children away from the elevator on the third floor; “that plaintiff had no duties to perform in connection with the fourth floor, except at the front of the house, where the playrooms were, and .plaintiff made use of the front staircase to get up and down, to and from the playrooms.” The assistant butler, Plugh, in an affidavit received in evidence by agreement of counsel, because he was out of the jurisdiction, stated that it was solely his duty to operate the elevator to or at the fourth floor, and that, in accordance with defendant’s instructions, “all doors leading into the elevator shaft were kept locked when not in use”; that the last time he used the elevator at the fourth floor, prior to the accident, he locked the door, and left the key in the lock, as usual.
The theory of the declaration is that it was defendant’s duty to provide plaintiff with a reasonably safe place in which to work; that there was a breach of this duty, in that the dumb-waiter shaft on the fourth floor was not properly guarded; and that, while acting within the scope of her employment and in-the exercise of reasonable care, she was injured in the manner stated.
[1] The first assignment of error relates to the action of the court in overruling defendant’s motion for a directed verdict at the close of all the testimony. The jury was justified in finding that the plaintiff, at Ihe moment of the accident, was attempting to carry out her employer’s instructions, and was acting within the scope of those instructions ; that is, within the scope of her employment, as alleged in the declaration. Defendant repeatedly had rung for the butler, and, when she made known to the plaintiff that he was not downstairs, but might be in his room, and that plaintiff was to “call or find” him (for such was the testimony of the plaintiff, which the jury, of course, had a right to accept), plaintiff clearly was justified in pursuing the course she adopted. Indeed, if we adopt defendant’s recollection of the oc[308]*308currence, there is no change in the result; for the plaintiff still was justified in interpreting the language used to mean that, if unable to locate the butler by calling to him, she was to proceed td his room, for the last words of the defendant, according to defendant’s testimony, were, “He may be in his room.”
[2] It is conceded that it was the duty of the defendant to provide for the plaintiff reasonably safe surroundings; that is, a reasonably safe place in which to work. Carter v. McDermott, 29 App. D. C. 145, 10 L. R. A. (N. S.) 1103, 10 Ann. Cas. 601. But it is insisted that there was no breach of that duty. The views of other courts, in cases involving similar conditions, will be helpful. In Roth v. Buettell Bros. Co., 142 Iowa, 212, 119 N. W. 166, the ground of negligence charged was the omission to keep in repair the latch to the door of an elevator shaft and the bar extending horizontally across the
Free access — add to your briefcase to read the full text and ask questions with AI
ROBB, Associate Justice.
This appeal is from a judgment in the Supreme Court of the District for the plaintiff, appellee here, in an action for damages growing out of injuries sustained by the plaintiff in falling down a dumb-waiter shaft in defendant’s dwelling house.
At and for about five weeks prior to the time of the accident, plaintiff had been employed by the defendant in defendant’s home in this city, exclusively as a nursery governess. The house, in which defendant had resided for several years, was of the English basement type and four stories in height. Plaintiff’s duties were chiefly confined to the third floor, where she slept in proximity to the children, and in the front part of this floor was located defendant’s sleeping apartment. There were two stairways leading from the third to the fourth floor; one stairway being in about the center of the house and the other in the rear. In the front part of the fourth floor were playrooms for the children, but plaintiff always had used the center stairway in gaining access thereto. The dumb-waiter was in an inclosed shaft extending from the first to the fourth floor, and was equipped on the different floors with ordinary doors, “just the same as any other door leading into á room.” Plaintiff knew that between the door on the third floor and the shaft was a gate that extended across the opening, but prior to the accident she had never used the rear stairway on the fourth floor, and there is no evidence tending to show that she knew the location of the dumb-waiter on that floor. Indeed, the evidence fails to show plaintiff even knew that the dumbwaiter extended to the fourth floor. In this connection defendant testified that plaintiff “had nothing to do with the elevator whatsoever.” The door to the dumb-waiter shaft on the fourth floor was about three feet distant from and directly opposite the top step or landing of the back stairway, and, unlike the third floor, was equipped with no gate. The door on this fourth floor was supplied with an ordinary knob, and had a lock and key; the key always being left in the lock.
On the night of the accident defendant had been out and returned home some time between 10 and 11 o’clock. Plaintiff was in the sewing room, where she had been all the evening. This room was between the front stairway and defendant’s room. According to plaintiff’s testimony, which does not differ materially from that of defendant, after some casual remarks, plaintiff inquired of defendant, “Can I do anything for you?” Defendant replied, “Well, I have been ringing and ringing and ringing. Could you 'call or find’ Hugh” (the second butler). Plaintiff then asked, “Where do you think he would be?” and defendant answered, “He is not downstairs; he may be in his room.” Plaintiff responded that she would see what she could do “and went to call the man”; defendant going to her room. On this point defendant testified that plaintiff, when defendant came in, inquired if there was anything plaintiff could do for her, to which defendant replied that all the lights were on; that she had been ringing the bell, but no one answered. She then inquired of plaintiff if plaintiff knew where Plugh was. Defendant further testified as follows:
“Plaintiff answered that she did not, and defendant said, ‘Will you be good enough to call him?’ Plaintiff said, ‘I will go and get him;’ and witness [307]*307replied, ‘Don’t bother to go; fust call. As he is not in the pantry, and not downstairs, ho may be in his room.’ ”
The man’s room was in the servant’s quarters, in the rear part of the fourth floor. Plaintiff had not been in the back part of the house on the fourth floor, “and there was a door that shut it off” from the other part of that floor. She “did not know actually where his [Hugh’s] room was,” but did know that the help slept on the fourth floor, and “had seen them come up and down the back stairway.” Plaintiff went to this stairway, opened the swinging door, and called to Plugh several times. 'Receiving no response, she proceeded up the stairway, which was in darkness, and when she reached the top stair (but a step from the elevator shaft door) endeavored to find an electric bulb, and, while doing so, continued to call without result. Her hand came in contact with a door handle or knob; the door being ajar. She opened the door, and, as she took a step forward, called again, and fell down the dumb-waiter shaft, receiving serious and permanent injuries. As she expressed it:
“1 had trodden into the dumb-waiter, which I had not realized was there.”
The evidence for the defendant was to the effect that she had cautioned plaintiff to keep the children away from the elevator on the third floor; “that plaintiff had no duties to perform in connection with the fourth floor, except at the front of the house, where the playrooms were, and .plaintiff made use of the front staircase to get up and down, to and from the playrooms.” The assistant butler, Plugh, in an affidavit received in evidence by agreement of counsel, because he was out of the jurisdiction, stated that it was solely his duty to operate the elevator to or at the fourth floor, and that, in accordance with defendant’s instructions, “all doors leading into the elevator shaft were kept locked when not in use”; that the last time he used the elevator at the fourth floor, prior to the accident, he locked the door, and left the key in the lock, as usual.
The theory of the declaration is that it was defendant’s duty to provide plaintiff with a reasonably safe place in which to work; that there was a breach of this duty, in that the dumb-waiter shaft on the fourth floor was not properly guarded; and that, while acting within the scope of her employment and in-the exercise of reasonable care, she was injured in the manner stated.
[1] The first assignment of error relates to the action of the court in overruling defendant’s motion for a directed verdict at the close of all the testimony. The jury was justified in finding that the plaintiff, at Ihe moment of the accident, was attempting to carry out her employer’s instructions, and was acting within the scope of those instructions ; that is, within the scope of her employment, as alleged in the declaration. Defendant repeatedly had rung for the butler, and, when she made known to the plaintiff that he was not downstairs, but might be in his room, and that plaintiff was to “call or find” him (for such was the testimony of the plaintiff, which the jury, of course, had a right to accept), plaintiff clearly was justified in pursuing the course she adopted. Indeed, if we adopt defendant’s recollection of the oc[308]*308currence, there is no change in the result; for the plaintiff still was justified in interpreting the language used to mean that, if unable to locate the butler by calling to him, she was to proceed td his room, for the last words of the defendant, according to defendant’s testimony, were, “He may be in his room.”
[2] It is conceded that it was the duty of the defendant to provide for the plaintiff reasonably safe surroundings; that is, a reasonably safe place in which to work. Carter v. McDermott, 29 App. D. C. 145, 10 L. R. A. (N. S.) 1103, 10 Ann. Cas. 601. But it is insisted that there was no breach of that duty. The views of other courts, in cases involving similar conditions, will be helpful. In Roth v. Buettell Bros. Co., 142 Iowa, 212, 119 N. W. 166, the ground of negligence charged was the omission to keep in repair the latch to the door of an elevator shaft and the bar extending horizontally across the entrance thereto. Plaintiff had been employed in the building for nine years, was a foreman, and familiar with surrounding conditions. The day was stormy; and it was so dark in the elevator shaft that objects could not be observed distinctly. As he approached, he noticed that the door to the elevator was open, and that the bar was not in place, “and supposing he saw the framework of the elevator, stepped in, and fell down the shaft.” The court ruled'that it was a question for the jury “whether defendant had exercised reasonable care for the protection of its employes against injury which might result from the absence of barriers to tiic shaft ^
In Foren v. Rodick, 90 Me. 276, 38 Atl. 175, plaintiff sustained injuries by falling into the cellar of a block, the first'floor of which was occupied by stores, and1 the second floor by offices. Near the double door entrance to the staircase leading to the offices was a single door opening from the sidewalk to the cellar. Plaintiff, although she previously had visited the office to which she was going, by mistake opened the cellar door, stepped forward, and fell into the cellar; there being only a ladder leading down. The court said:
“The conclusion is irresistible in tbe case at bar that the maintenance of the unfastened door and unguarded entrance to the cellar, in close proximity to the main entrance to the second floor of the building, without any sign or warning to distinguish the one from the other, and the attachment of the professional sign of a tenant to the building in such a position between the two doors as to leave it uncertain to which entrance it was designed to give direction, rendered the conditions connected with the approach to the main entrance of the building misleading and dangerous. In this respect the building was improperly constructed and negligently maintained.”
Hayward v. Merrill, 94 Ill. 349, 34 Am. Rep. 229, is closely in point. Plaintiff was a guest in the hotel kept by defendant, and was assigned to a room, adjacent to the door of which was a similar door communicating with an elevator well. The hall was dimly lighted, and plaintiff, by mistake, opened the door to the elevator well and stepped through, to his injury. The court said:
“The opening ought to have been better protected than it was, and the ■omission to do so, under the circumstances proven, may well be attributed to the defendant as gross negligence.”
[309]*309In Camp. v. Wood, 76 N. Y. 92, 32 Am. Rep. 282, the defendant was proprietor of an inn, on the third floor of which was a dance hall, which he had let for the evening for a public dance. The hall was reached by two flights of stairs from the street, one directly over die oilier; the lower extending to the second floor and the upper to the third floor. The door and stairway in the second story occupied the same relative position to each other as the door and stairway below. Plaintiff, who had been drinking, passed down the flight of stairs leading from the third to the second floor, and, seeing an open door, which he supposed opened to the street, stepped out upon a dark and unguarded piazza or balcony and fell to the ground. The court said:
“Tlie facte proved justified the jury in finding that it was dangerous 1<> leave the door open, and that persons not familiar with the. premises might, in tin' siighttime, without being chargeable with negligence, mistake tlfix? door for the street door, and go onto the awning, under the impression that they were going onto the sidewalk.”
Clopp v. Mear, 134 Pa. 203, 19 Atl. 504, was an action based upon negligence, wherein it appeared that the store of defendant had two entrances of like appearance; one intended for customers and the other leading to a hatchway. The door to the latter entrance being unfastened, plaintiff opened it by mistake, “and, taking the entering step to the store, plunged headlong into the cellar.” The court said that the jury had been properly instructed on the question of negligence and contributory negligence, and hence that it was unnecessary to notice specially any of the assignments of error; that “neither of them can be sustained without ignoring principles that have been so long and thoroughly7 well settled as to admit of no reasonable doubt.” See, also, Gordon v. Cummings, 152 Mass. 513, 25 N. E. 978, 9 L. R. A. 640, 22 Am. St. Rep. 846; Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450; Wendler v. People’s House Fur. Co., 165 Mo. 527, 65 S. W. 737.
[3] We are of opinion that, upon both principle and authority, no error was committed by the court in the present case in submitting to the jury7 the question whether the opening in the dumb-waiter shaft on the fourth floor was adequately protected; in other words, whether defendant had provided plaintiff a reasonably safe place in which to perform the duties assigned her. It must be remembered that this opening was directly opposite and within a step of the back stair landing. There was nothing to distinguish the door to this opening from any other door, and, while it was provided with a lock and key, the key was permitted to remain in the lock — a fact known to the defendant. It is true that the butler, who alone operated the dumb-wai1er, had been instructed to keep this door locked; but the plaintiff testified, and the jury evidently believed, that it was not locked upon the occasion in question. The possibility that the butler might forget to lock the door might have been anticipated by the defendant, for human memory is proverbially frail in matters of this sort. Unless the butler tried the door after using the elevator, he might not know whether it was locked or unlocked, for, if closed, it would present the same appearance, whether locked or unlocked. This danger evidently was [310]*310appreciated by the defendant, for on the third floor she had provided more adequate protection by the installation of a gate inside the door. On the fourth floor there was no gate, and not even a spring lock on the door. An ordinary door, that through oversight might be left unlocked, as in this case, was the only barrier between this four-story well and the hallway, with the stairway landing only three- feet away. This was not adequate protection.
[4] But it is insisted plaintiff was guilty of contributory negligence. In each of the decisions to which reference has been made it was held that this question was for the jury. In Foren v. Rodick, 90 Me. 276, 283, 38 Atl. 175, 178, the court said:
“She [plaintiff] turned the knob, and the door readily yielded ‘about the same as any door.’ She says it was dark when she opened the door. There was nothing to suggest a ‘yawning abyss.’ The existing condition was not instantly manifest; but, suspecting no danger, she naturally stepped over the threshold simultaneously with the inward swing of the door. She was seeking to enter the building by the implied invitation of the defendants. She had-a right to expect reasonable safety and convenience in the approaches. She was not required to use extraordinary precaution, but only such ordinary care and caution as persons of reasonable prudence, care, and discretion usually and ordinarily exercise under such circumstances.”
In that case, it will be remembered, the plaintiff, instead of using the double’door entrance, opened a single door and fell into the cellar. In the present case we are concerned with an elevator in a dwelling house, occupied by the defendant and her children. On the third floor the elevator was equipped with a gate inside the door, and, whatever may have been the reason for its installation, the material fact is that the gate was there, and that plaintiff knew it was there. Defendant stated on the stand that she had warned plaintiff “to keep the children away from the elevator on the third floor”; but it is not even suggested that any warning had been given as to the fourth floor, in the front part of which the children had playrooms. It would not have been a violent assumption, therefore, had plaintiff concluded that the elevator shaft had no opening on the fourth floor, if it projected beyond the third floor, or that any opening on the fourth floor was so situated and protected as to give defendant no concern even for her children.
It is suggested, on behalf of defendant, that plaintiff should have used the front stairway upon the occasion in question. The answer to this obviously is that the plaintiff, when informed by defendant, that the butler, Hugh, might be in his room, which was in the back part of the fourth floor, naturally made use of the staircase leading directly to that part of the floor, and which she had seen used by the servants in going to and from their quarters. It is apparent from her testimony that her' mind was occupied with the execution of the mission intrusted to her by her employer, and we think she had a right to suppose — especially in view of known conditions on the third floor and the failure of her employer to acquaint her with any unusual conditions on the fourth floor — that she would not be subjected to the dangers which awaited her and of which she had no warning. She was not rambling around, as has been suggested, but engaged in -the performance of a duty intrusted to her by her employer, and when she found [311]*311the door to the shaft ajar, under the circumstances disclosed, we think she had no reason to assume that a step forward would result as it did.
Among the authorities relied upon by counsel for appellant is Steger v. Immen, 157 Mich. 494, 122 N. W. 104, 24 L. R. A. (N. S.) 246, where the plaintiff, during a visit to defendant’s five-story apartment house building, borrowed a key from a tenant, and, finding an unlocked door in a relatively similar situation to that of a toilet on the floor below, without any investigation entered and fell down an open shaft. It was ruled that he was guilty of contributory negligence as matter of law. The plaintiff in that case was on a mission of his own, and the circumstances were somewhat different from those in the present case. There the plaintiff was looking for a place which he did not even know existed, and which as a matter of fact had no existence. Here the plaintiff, in a private dwelling, was proceeding to carry out the instructions of her employer, which took her to the very point where the accident occurred. In Hilsenbeck v. Guhring, 131 N. Y. 674, 30 N. E. 580, the plaintiff, the guest of a tenant, walked through a cellar door, across a platform, and fell downstairs. It was pointed out by the court that the head of the cellar stairs was “two or three steps” from the door, “so that it could not be claimed that the top of the stairs was so close up to the door that one in the exercise of ordinary care would be apt to fall down the stairs upon the door being opened, and before he would have a fair or reasonable opportunity to notice what was in front of him.” Comment on this case is unnecessary, for the difference between it and the case at bar is apparent. Without reference to other cases cited in behalf of defendant, it may be observed that we have found nothing therein to dissuade us from adopting the principles laid down in the authorities already reviewed. If dangerous conditions are needlessly and carelessly maintained, and, as here, are the proximate cause of the injury complained of, those responsible therefor ought in common justice to respond in damages.
[5, 8] One point remains. -It is based upon the contention that the court erred in permitting testimony and photographs to be introduced in evidence as to cónditions surrounding the elevator opening on the third floor. Since both parties introduced evidence on this point, we think defendant is in no position to raise that question. But, however that may be, the evidence clearly was admissible on the question as to whether plaintiff was exercising due care and caution. Her knowledge of conditions existing on the third floor was material' in this connection.
Finding no error in the record, we affirm the judgment, with costs.
Affirmed.