Staples v. Senders

*252 LUSK, J. 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. *253 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 Torpey v. Sanders, 248 App. Div. (N. Y.) 303, 305, 289, N. Y. S. *254 532. 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 ease, 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 *255 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 per form 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 Eklof v. 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 Atl. 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 *256 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 Atl. 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’s Famous Crawfish, Inc., 148 Or. 340, 36 P. (2d) 352. The absence of a railing was, as Mr. Justice Band 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. Band, C. J., and Kelly, Belt and Bean, JJ., concur; Bossman and Bailey, JJ., not sitting. *257 Argued on rehearing February 27; former opinion adhered to April 16, 1940