Malolepszy v. Central Market, Inc.

Paine, J. This is an action for personal injuries resulting from falling into an open elevator shaft in the back of a store. The jury returned a verdict of $5,583.77, for which amount judgment was entered. The defendant appealed. This case was first argued to this court on October 7, 1942, and the opinion then adopted reversed and dismissed the action, and is found in 142 Neb. 570, 7 N. W: (2d) 74. Plaintiff had been employed for about four years at “Harkert’s,” a restaurant located at 1619 Farnam street, Omaha. The defendant, Central Market, Inc., conducts a larg-e grocery store, in which there Is a meat department, which sells at wholesale - and retail, and salesmen solicit from hotels and restaurants for the wholesale meat department. The Central Market is located directly across the alley from the Harkert establishment. All the retail business of the Central Market was closed on Sunday, but it was a custom for favored restaurants and hotels, including Harkert’s, to buy meat at wholesale on Sunday whenever an emergency arose. Such special customers would usually send some employee for the meat they needed, who would go to an entrance on the alley and pound on the door until some one inside answered the alarm and gave them the meat, and the charge ticket would be made as of Monday. At 10 :15 on Sunday forenoon, October 27, 1940, the manager of Harkert’s sent the plaintiff across the alley to get meat at wholesale. He had often been sent for meat during the week, but this was the first time that he had been sent for meat on Sunday. He rattled the alley door nearest the street, and failed to attract the attention of any one on the inside. F. L. Hogan was engaged in the trucking business, operating his own truck with a helper, and regularly gathered up rubbish and trash, with the help of its employees, from the Central Market. Hogan was standing down the alley at another door into the Central Market, where he was breaking up boxes and bundling them up to be taken away. The plaintiff wras dressed in white, with the word “Harkert’s” on his uniform, and Hogan called to' — 358 — him to come down there and go inside where he was and call the elevator man. The plaintiff thereupon went to this second alley door and entered to go to the elevator shaft and call the elevator man. The place was very dimly lighted, and looking straight ahead he saw a slat gate in front of him, which he supposed closed the elevator shaft, and walked towards it to call up to the elevator man, who was on the second floor, but instead the slat gate on the side towards the plaintiff had not worked properly and had stuck and not fallen down as the elevator went up, and the plaintiff walked directly into the unlighted elevator shaft, which he could not see, and fell 15 feet to the bottom of the pit, causing fractures of several vertebrae and other serious injuries. The light was just bright enough so he could see the slats of the gate on the other side, but the floor was dark, and because the gate had failed to come down by gravity on his side, as it should have done, he walked right into the pit. Plaintiff claims that his injury was caused by reason of the carelessness and negligence of the defendant in the following particulars: (a) Failing to keep its premises in the vicinity of the elevator properly and sufficiently lighted; (b) failing to place the safety gate across the open elevator shaft and pit when the elevator was not at the floor level; (c) moving the elevator from the floor level to the floor above and failing to lower the safety gate to prevent persons from walking into the open elevator pit; (d) failing to warn or caution plaintiff and other persons rightfully on the premises that the elevator pit and shaft were open and unprotected; (e) maintaining a trap and pitfall without properly lighting and guarding it to prevent persons from falling into it. In its amended answer the defendant specifically denies the allegations in plaintiff’s petition that plaintiff entered the place of business of defendant through the rear door which was one of the regular and customary places of entering defendant’s place of business; denies that the plaintiff was an invitee on the defendant’s premises, and in this — 359 — connection alleges “that said entrance, through which the plaintiff entered the defendant’s store on this occasion, was not a regular and customary entrance used either by its customers or by the public; that said entrance opened onto a loading platform and 'into an elevator room used solely and exclusively by this defendant in conducting his business, no part of which was conducted in furthering the sale of its merchandise either at wholesale or at retail; and that sa'id platform, and elevator room, was constructed on the premises separate and apart from that portion of the premises used by this defendant for transacting business with its customers or the public.” Defendant further charges in his amended answer that the plaintiff, at the time of this accident, was a trespasser on the premises, and that the accident and the injuries, if any, were due solely and entirely to the carelessness and negligence of this plaintiff. For assignments of error the defendant first submits that the court erred in overruling this defendant’s motion to dismiss this action or to instruct the jury to return a verdict in favor of this defendant, made at the close of the plaintiff’s case and again when all parties had rested. From an examination of the conflicting evidence in this case, we conclude that the trial court was right in overruling these motions for an instructed verdict. The next assignments of error relate to the giving of four of the instructions to the jury. An examination of these instructions shows that No. 3 sets out the substance of the answer filed by the defendant, and nothing is pointed out in the brief to call our attention to any important allegation which was omitted by the court. We find no error therein. The giving of instructions No. 9, on amount of recovery, if any, and No. 10, on mortality tables, is set out as error, but as they are not argued in the brief, and as no error appears, or is pointed out, we hold that these two instructions were properly given. Now, the particular instruction which is argued at length by the defendant is No. 5, reading as follows: — 360 — “You are instructed that the following definitions are to be used by you in determining the status of the plaintiff in his relationship to the defendant Central Market, Inc.: “The word ‘trespasser’ is legally defined as a person who enters or remains upon premises in possession of another without a privilege to do so created by the possessor’s consent, either express or implied. “An invitee is a person who enters or remains upon the premises 'in the possession of another after having been expressly or impliedly invited to do so, such as a person who enters a premises in the possession of another for the purpose of transacting some business with the possessor of the premises. “You are further instructed that it is the duty of a person 'in possession of premises, in respect to an invitee or business customer, to keep his premises in a reasonably safe condition for the purpose for which they are intended to be used. “You are further instructed that a person In possession of premises owes no duty whatever to a trespasser who is on his premises without his knowledge or consent, either express or implied, in respect to keeping his premises in a safe condition.” It is insisted in the defendant’s brief that this instruction did not cover a licensee, and that this omission is reversible error. This court has clearly defined the three terms as follows : “The law places those who come upon the premises of another in three classes: Invitees are those who are expressly or impliedly invited, as a customer to a store; licensees are persons whose presence is not invited, but tolerated; trespassers are persons who are neither suffered nor invited to enter. The duty of the owner toward an invitee is to exercise reasonable care to keep the premises in a safe condition, but licensees take the premises as they find them, the only duty of the occupier being to give notice of traps or concealed dangers. Toward trespassers the occupier need only refrain from wilful or wanton injury as — 361 — modified by the ‘attractive nuisance’ line of cases. See 20 R. C. L. 69, sec. 60.” Haley v. Deer, 135 Neb. 459, 282 N. W. 389. The defendant, in support of his contention that the giving of instruction No. 5 was prejudicial, cites: “Where one, at his own request, and solely for his personal pleasure, convenience, or benefit, enters upon the private' portion of the business premises of another, with his consent, but without an invitation, he is a bare licensee in such portion of the premises not open to the public, and the occupier of the premises owes no duty to him, save to refrain from inflicting injury upon him.” Collins v. Sprague’s Benson Pharmacy, 124 Neb. 210, 245 N. W. 602. Also cited is Wright v. Salvation Army, 125 Neb. 216, 249 N. W. 549: “The liability of the owner of the premises to an invitee who enters thereon is only coextensive with the invitation, and when the limits of the invitation are exceeded the invitation ceases, and the duty of the owner is only that of abstaining from acts wilfully injurious.” In this case there were warning signs, marked “Danger” and “Elevator,” while in the case at bar there were no such signs. . Now, we will examine several cases closely in point. In a Minnesota case a farmer was injured by an automobile being repaired and out of control, while he was passing through the rear portion of a village automobile repair and farm implement shop in order to transact business in the front, and it was held that the fact that he reached the place where he was injured by passing through a rubbish-strewn alley and the rear entrance of the building did not constitute him a bare licensee, so as to preclude him from invoking the rights of one upon premises by invitation, and a verdict in his favor was sustained. Jewison v. Dieudonne, 127 Minn. 163, 149 N. W. 20. Another case somewhat similar to the case at bar is that of Chichas v. Foley Bros. Grocery Co., 73 Mont. 575, 236 Pac. 361. Defendant was engaged in wholesale grocery. A freight elevator ran from the basement to the second floor. Plaintiff, a retail grocer, was a steady customer. — 362 — He drove his automobile to the rear entrance of defendant’s building, stopped at a platform, and by means of a plank walked up on this platform about four feet from the ground, entered a door, and proceeded along a passageway, stored with merchandise, which was not well lighted, and in 'ignorance of the existence of an unguarded elevator shaft fell into it. It was held (236 Pac. 361) : “An owner is liable to invitee, for injuries occasioned by unsafe condition of premises, if known to him and not to invitee, and which was negligently suffered to exist without timely notice. In action by invitee, for injuries sustained by falling through open elevator shaft maintained in defendants’ building, contributory negligence of invitee held for jury.” We cite additional cases bearing upon the points involved: Brett v. Century Petroleums, Inc., 302 Ill. App. 99, 23 N. E. (2d) 359; Palmer v. Boston Penny Savings Bank, 301 Mass. 540, 17 N. E. (2d) 899; Rudolph v. Elder, 105 Colo. 105, 95 Pac. (2d) 827; Pauckner v. Wakem, 231 Ill. 276, 83 N. E. 202; Armour & Co. v. Rose, 183 Ark. 413, 36 S. W. (2d) 70; St. Louis, I. M. & S. Ry. Co. v. Wirbel, 104 Ark. 236, 149 S. W. 92. Defendant cites the-case of Wentink v. Traphagen, 138 Neb. 41, 291 N. W. 884, as - controlling in the case at bar. We find in that case that an employee of a furniture company delivered two gas stoves to tenants living in the second and third floors of a store building. They requested this employee to connect the stoves with the gas line. He had never been in the basement before, but 'in going there to find the place to shut off the gas line he struck the two matches he had with him. After the last match went out he figured he “could make it,” and walked ahead in the darkness for four to seven feet, and fell into the pit in which the furnace and gas water heater were placed. This court held that “the negligence of plaintiff contributed directly thereto as the moving cause of the accident, and because thereof, plaintiff cannot recover.” A licensee is one who is on the premises of another for — 363 — his own interest or gratification. He is exercising a privilege solely for his own convenience or benefit. A licensee does not stand in any contractual relation with the owner of the premises, as a prospective purchaser does. This matter is discussed in Restatement, Torts (Negligence), sec. 343, and is found on pages 938 to 943, from which we may briefly summarize as follows: There is only one particular in which the owner who holds his land open for business visitors is under a greater duty in respect to 'its physical condition than to a visit of a licensee. He has no financial interest in the entry of a gratuitous licensee, who is entitled to expect nothing more than an honest disclosure of the dangers known to the owner. On the other hand, the visit of a business visitor is, or may be, of financial benefit to the owner, and such a visitor is entitled to expect the owner will take reasonable care to' discover the actual condition of the premises and either make them safe or warn him of dangerous conditions, so that he will have opportunity to decide intelligently whether or not to accept the invitation. But the owner is subject to liability while the invitee is upon that part of the premises where the owner gives the other reason to believe that his presence is permitted or desired because of its connection with the business. In determining this area, the nature of the business to be transacted is of great importance. The customer is a business visitor thereon, unless the owner exercises reasonable care to apprise him that the area of invitation is more narrowly restricted. If the owner should realize that either one of two . doors might be taken by his business visitor to be the door to the business area, the visitor is entitled to the protection of a business visitor even though he enters the wrong door. • In our opinion, considering the fact that the defendant in its amended answer charged as follows: “And that this plaintiff was, at the time and place of the accident, a trespasser upon the premises of this defendant,” and did not claim therein that plaintiff was a licensee, and as no in — 364 — struction of any kind was offered by defendant on this or any other point, we hold that it was not error for the court to omit a definition of licensee in the fifth instruction, in which “invitee” and “trespasser” were correctly defined. It is not disputed that certain wholesale buyers of meat from the Central Market were invited to get meat products on Sundays when needed.. The invitation was general; in fact, It was nothing more than an invitation to come to the rear of the store, arouse any person or persons who might be on the inside, and obtain from them the meat products they required. The scope of the invitation must therefore be determined, not only from the conversations of the parties, but from all. the facts and circumstances existing at the time the accident occurred. Clearly, under such circumstances, the scope of the business invitation extended is a question of fact to be determined by the jury after a consideration of all the evidence bearing upon the issue. Likewise, the question whether plaintiff, in going- to the store in response to the invitation extended, acted within the scope of the invitation, is a question for the jury. In determining this question, the jury could well consider the fact that the invitation was not limited to any particular door or means of entrance. They should also consider whether plaintiff, in doing what he did, acted, as a reasonable and prudent person would have acted under the same circumstances. They should also consider whether the Central Market, in extending the invitation as it did, was bound to anticipate that a reasonable and prudent person might not, after finding one door closed, use the other. To say that, as a matter of law, a business invitee must, under the circumstances here shown, choose at his peril one of two doors with which he is unfamiliar is not logical and reasonable. Under the record the scope of the invitation extended and the question whether plaintiff acted within such scope are clearly questions to be submitted to the jury under proper instructions. They having decided them for the plaintiff upon evidence sufficient to sustain a verdict, this court is required to give effect thereto. — 365 — Our former opinion in 142 Neb. 570, 7 N. W. (2d) 74, is hereby set aside. The judgment of the trial court is hereby affirmed. Affirmed.