Donohue v. Western Union Telegraph Co.

Opinion by Head, J., The room in which the defendant company conducted the business of its branch office was not directly accessible from the street. It occupied the entire front of the small single story building in which it was located except the portion taken up by a hall which opened from the street. This hall extended back along the side of the defendant’s office to a door giving access to the rear room of the two which the building contained. The only way by which the employees of the defendant could reach their places of employment was by entering this hallway from the street, traversing it to the door leading into the rear room and passing through that room into the telegraph office. Patrons of the company were expected to enter this same hallway from the street and pass along it a short distance to a window which pierced the partition separating the hallway from the telegraph office. The hall itself could be easily and abundantly lighted during the daytime from windows which were protected by shutters. The defendant. had no possession or right of possession of the cellar and no control whatever of a small trapdoor in the hallway by — 258 — means of - which the owner of the building could have access to the cellar. About ten . o’clock on the morning of the. accident which gave rise to this litigation, the plaintiff was desirous of sending a telegraphic message. She had no previous acquaintance with this particular office of the defendant but saw on the building the usual sign that a telegraph office was there located. She entered the hallway and found it in partial obscurity by reason of the fact that the shutters of the windows had not yet been opened. She was able to see, however, the small window in the partition, with the usual shelf, etc., indicating the place for the receipt of her message. She found that- window closed. She could .hear the clicking of the telegraph instruments within and , the voices of the employees in conversation. She pounded on the floor with her umbrella in the effort to attract their attention, - but failed to secure it. Looking about for some other means of depositing her message, she saw that the door, leading into the rear room at the farther end, of the hall was ajar, and concluding that it probably furnished access to a place where her message would be received, .started towards it. The testimony shows that just a minute or two before her entrance, a plumber, employed by the owner to do some work in the cellar, had lifted the trapdoor in the floor of the hallway and gone. below without closing the opening, leaving no light or protecting it in any way. The plaintiff, unable because of the obscurity of the hallway, to see the opening, fell into it and was. injured. Thereupon she brought this action to recover damages. The learned trial court refused to direct a verdict for the defendant but submitted the questions of the defendant’s negligence and the contributory negligence of the plaintiff. The jury found for the latter- and this appeal followed. We cannot agree that the learned trial judge should have declared, as matter of law, that the plaintiff was guilty, of contributory negligence. Relying on the iavi — 259 — tation extended by the defendant company’s sign on the exterior of the building, the plaintiff lawfully entered ■ the hallway for the purpose of sending a telegram. She was entirely warranted in expecting that a reasonably safe place would be provided for the transaction of the business in hand. It is quite true she reached in safety the small window usually marking the ■ place for' the receipt of messages. Having found that closed, the defendant earnestly contends that her duty required her to depart as she had come, and that, in the attempt • to find a way to have her message reach the operator, who was within, she overstepped the limits of the invitation that had been extended to her and voluntarily assumed the risk of anything that might occur to her in. going farther. But it is apparent to us that the line of conduct that would be followed by a reasonable man under such unusual circumstances is not so plain that a trial court could say, as a matter of law, that she had gone outside the suggestions of reasonable prudence. Having lawfully entered the premises at the invitation of the defendant, she was entitled to make such use of them as a person of reasonable prudence under like conditions would have done, and it must be the function of a jury to determine the extent of such use. There was therefore no error in the refusal of the trial judge to declare the plaintiff guilty of contributory negligence. There was no evidence in the case to warrant a finding by the jury that defendant had any control whatever of the trapdoor leading to the cellar; nothing to show that it ever used such opening or had a right to use it; nothing to indicate that it had any knowledge of the manner in which it was used by the landlord, or that there was any intention or purpose to use it on the morning in question. If the opening of the trapdoor by an employee of the landlord and leaving it unguarded were the sole and proximate cause of the injury to the plaintiff, her case against the defendant would fail on the principles declared in Green v. Baltimore & Ohio R. R. — 260 — Co., 214 Pa. 240, and Mills v. Brandes, 235 Pa. 219. Under such circumstances the case last cited would be practically on all fours with the one at bar and would necessarily control our conclusion. We are satisfied therefore that the learned judge below erred in so submitting the case to the jury as to permit a finding by the latter that the defendant had any control whatever over the trapdoor in the floor of the hallway. The evidence furnishes no warrant for such conclusion and that question had no part in the proper disposition of the case. But it does not follow that the plaintiff would have been injured because of the unguarded opening in the hallway, had the defendant performed a duty manifestly incumbent on it for the protection of its patrons who lawfully entered the hallway. It was its duty to furnish to such patrons a reasonably safe place in which to transact their business. It was obliged to see that the hallway into which it invited its patrons was so lighted by natural or artificial light that by the proper use of their senses they could protect themselves from injury even from an opening in the floor of the hallway or an incumbrance deposited there without the knowledge of the defendant: Hall v. Bessemer & Lake Erie R. R. Co., 36 Pa. Superior Ct. 556. It is in this respect that the present case is differentiated from those we have cited. The plaintiff’s statement averred the failure to light the hall as a distinct act of negligence on which her case rested. Instead of directing the attention of the jury prominently to this alleged act of negligence and the testimony supporting it, the case was practically submitted to them as if it turned on the question whether or not the defendant had such control of the hallway as to make it responsible for the opening of the trapdoor or leaving the opening unguarded. It was only at the conclusion of the charge, when the attention of the court was specially called to the situation, that a few words were said to the jury on what was in fact the controlling question in the case. — 261 — Moreover, more than once during the charge the learned trial judge declared to the jury that it was the duty of the defendant to furnish a safe place for the transaction of business by its patrons. The assignments of error complain of such instructions as laying down a rule too broad because it would be tantamount to a declaration that the defendant became the insurer of the safety of every patron whilst engaged in the transaction of business with it. The learned counsel for the appellee urges upon us that the trial judge was using the word “safe” in what he terms a colloquial sense and that other parts of the charge sufficiently define the limits within which he used it so as to preclude the idea that the jury were misled thereby. How we might regard this argument, if we were able to view the question as an open one, we need not consider. In two very recent cases the Supreme Court has flatly declared that the failure of the trial judge to qualify such a statement so as to make it declaratory of the true rule of the law is reversible error. We need not stop to argue that the duty of the defendant in a case like the present is not different in kind or degree from the duty of an employer to furnish a reasonably safe working place for his employees. In Powell v. American Sheet & Tin Plate Co., 216 Pa. 618, Mr. Justice Elkin says: “It is not an accurate definition of the duty of a master to his servant to say that he must furnish ‘a safe place to work and safe tools with which to work.’ Employers are only required to furnish a reasonably safe place in which and reasonably safe tools with which to work. The distinction is based on substantial grounds. . . . We have had occasion to review this question at some length in the recent case of Welch v. Carlucci Stone Co., 215 Pa. 34, in which the rule of reasonable safety as to place and tools was discussed and adhered to. . . . There is error in that part of the charge of the learned trial judge wherein it is said, ‘If there is any neglect upon the part of the employer in furnishing a safe place to work or in furnishing safe — 262 — tools with which his employees are required to work, then the employer is liable.’ This definition states the rule too broadly and places upon the employer a higher standard of care than the law requires.” Fairly applying, as we must, this language and the rule it expresses .to the charge of the learned court below, we necessarily reach the conclusion that he fell into error. We have thus endeavored to indicate the reasons why we think the case was improperly tried and the lines upon which it must be retried. There is therefore no occasion to consider the assignments of error in detail. The judgment is reversed and a venire facias de novo awarded.