Perrault v. Emporium Department Store Co.

Gose, J The plaintiff, in attempting to step into an elevator owned and operated by the defendant in its department store, sustained a serious injury, for which she seeks redress in this action. There was a verdict in her favor for $800. The several motions of the defendant for a nonsuit, a directed verdict, and a judgment non obstante, were denied, and the motion of the plaintiff for a new trial on the ground of “inadequate damages appearing to have been given under the influ [525] ence of passion or prejudice” was granted. The defendant has appealed. It concedes that, if the court was not in error in denying its several motions, the order granting a new trial was not an abuse of discretion. Its contentions are, (1) that it was not guilty of negligence, and (2) that the respondent was guilty of contributory negligence materially contributing to and causing her injury; and hence that it incurred no liability. The material facts bearing upon these contentions may be brought within a narrow compass. The admitted facts are that appellant owned and operated an elevator in its department store, in the city of North Yakima, for the accommodation of its patrons. The respondent’s evidence tended to establish that she and two companions entered the elevator and were carried to the third floor; that they stepped from the elevator, and that the respondent made a small purchase at a counter some ten or fifteen feet distant; that her companions returned to the elevator and one of them rang; that the elevator returned to the third floor and they stepped in; that it was stopped some four or five inches below the surface of the third floor, a fact observed by the one but not observed by the other; that the elevator boy started to close the door but, upon the suggestion of one or both the ladies who had stepped in, desisted; that the elevator door was about four feet in width, and was permitted to remain open a width of about three feet; that one or both of the ladies in the elevator kept calling the respondent, and that she moved slowly sidewise toward the elevator, conversing with a lady at or near the counter, until within one step of the elevator, where she turned, facing the open door and facing her companions within, and attempted to step into the elevator without looking at its floor; that she stepped upon the edge of the floor of the building with her foot at a slight angle, fell into the arms of one of her friends in the elevator, and sustained a fracture of the external semilunar cartilage of the knee, which thereafter necessitated an operation. The third floor of the store was level, [526] carpeted and adequately lighted. The floor of the elevator was uncarpeted. The elevator door was open, and the inference is clear, though not directly stated, that the elevator boy was at his post. Upon these facts, the jury was warranted in finding that the appellant was negligent. An elevator used to carry passengers is a common carrier, and one who operates it must, like all other common carriers, exercise the highest degree of care compatible with its practical operation. Edwards v. Burke, 36 Wash. 107, 78 Pac. 610. The second point urged, i. e., that the respondent in failing to look at the floor of the elevator before stepping in, was guilty of negligence as a matter of law, cannot be sustained. She says that she did not notice that the elevator was lower than the floor; that she thought it was level with the floor until she fell, and that she then looked and observed that it was four or five inches below the surface of the floor. The open door, with the elevator boy at his post, was an invitation to enter; and whether, in the exercise of reasonable care which the law exacts, she ought under all the attending circumstances to have seen the situation as it was, was a question of fact for the jury. This view is supported in principle by Wheeler v. Hotel Stevens. Co., ante p. 142, 127 Pac. 840. There the plaintiff’s contention was, the lights being adequate, that she stepped through an open door into an elevator shaft, thinking that she was stepping into the elevator. The defendant’s contention was that the elevator door was closed. The opinion assumes that the question of her negligence was for the jury. It has been held in other jurisdictions that it is not negligence per se to fail to look before entering an elevator where the door is open. Tousey v. Roberts, 114 N. Y. 312, 21 N. E. 399, 11 Am. St. 655; Southern Building & Loan Ass’n v. Lawson, 97 Tenn. 367, 37 S. W. 86, 56 Am. St. 804; People’s Bank of Baltimore v. Morgolofski, 75 Md. 432, 23 Atl. 1027, 32 Am. St. 403; Burgess v. Stowe, 134 Mich. 204, 96 N. W. 29; Colorado Mtg. & Inv. Co. v. Rees, 21 Colo. 435, 42 Pac. [527] 42; Fisher v. Cook, 23 Ill. App. 621; Phillips Co. v. Pruitt, 26 Ky. Law 831, 82 S. W. 628. In Tousey v. Roberts, the plaintiff entered a hallway from the street, walked towards the elevator, and as she approached it the door was thrown open. She passed through and the car being above, she fell to the bottom of the shaft, sustaining serious injuries. Her contention was that the hallway which led to the elevator was not lighted, but whether it was then so dark that a light was required was a disputed fact. The defendant insisted that, if she had looked attentively, she could have seen that the elevator was absent, and that if she had listened she could have heard it descending from above. In addressing itself to the question of plaintiff’s failure to look and listen before passing through the door, the court said: “An elevator for the carriage of persons is not, like a railroad crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the contrary, it may be assumed, when the door is thrown open by an attendant, to be a place which may be safely entered without stopping to look, listen or make a special examination.” We are in full accord with that view. In the Lawson case, the plaintiff stepped down about 12 inches into an elevator through an open door, caught hold of one of the ropes by which the carriage was operated, and attempted to set the carriage in motion. Fearing that she had made a mistake, she attempted to step out of the shaft, when the carriage descended from above and caught and injured her. She said that she saw the door open, stepped into the shaft and thought it looked similar to one she had been accustomed to observing. It was held that the question whether she was guilty of such contributory negligence as would bar her recovery was properly left to the jury. In the Morgolofski case, the plaintiff’s testimony was that he could not see at all in the hall, and having heard the elevator go up, the door of the elevator being open, he was sure the elevator was in place. He stepped in to take the elevator, and fell down five floors into the base [528] ment. It was urged that, inasmuch as he walked into .the elevator without looking to see if it was there, he was guilty of contributory negligence. The court, however, expressed the view that there was no error in leaving it to the jury to find whether, under all the circumstances of the case, the plaintiff had a right to assume that the elevator was at the fourth floor where he stepped into the shaft. In Fisher v. Cook and Colorado Mtg. & Inv. Co. v. Rees, supra, the plaintiff stepped into an open elevator shaft, where there was evidence that the lights were inadequate, and the question of contributory negligence was held to have been properly left to the jury. In Burgess v. Stowe, supra, the court said: “There is some dispute as to whether or not the shaft was well lighted; plaintiff saying that the place was quite dark, while the defendant’s testimony indicates that it was quite light. We think it clear, however, that, had plaintiff been called upon to give particular attention to where he was stepping, he could not have failed to see that the elevator was not before him.” In Valentine v. Northern Pac. R. Co., 70 Wash. 95, 126 Pac. 99, the plaintiff entered an unlighted toilet in a Pullman car, through a dark aisle, caught her finger in the door, and was injured. We held that whether her conduct met the standard of reasonable care was a question for the jury. So in this case, we think it would be going too far to hold that the plaintiff may not have the jury determine whether her conduct squared with her duty to exercise reasonable care for her own safety. We need not review the authorities cited by the appellant. We have examined them, and in so far as they may state a different rule, we prefer not to follow them. The respondent has not filed a brief, and we have therefore passed the question as to whether the appellant may raise any issue on appeal other than to review the discretion of the trial judge in granting a new trial. The judgment is affirmed. Crow and Parker, JJ., concur.