Stratton v. Staples

Case — for negligence in not guarding a roll-way with railing. Waiver as to ambiguity of judge's charge. On the premises of the defendant, within one foot of the sidewalk of a public street, was a decending roll-way leading to the basement of the defendant’s block of stores. The entrance to the south store, occupied by the defendant’s tenant as a drug store, was up four narrow steps immediately south of the rol - way. In front of the stores north of the roll-way was a continuous platform extending from the north end of the block to the roll-way. The roll-way was unprovided with railing or other safeguard except a buttress on either side thereof rising nine inches above the level of the platform. ,The plaintiff went upon the north end of the platform in the evening, and while passing along in the exercise of ordinary care for the purpose of entering the drug store on ‘ legitimate business, fell into the roll-way and was injured. Held, thatthe place 'was unsafe, and the defendant liable. All objections to the charge of a presiding judge on the ground of ambiguity or inadequacy of expression in relation to matters of minor importance, will be considered as waived, unless made at the time of trial.

. Case to recover damages for a personal injury received by the plaintiff by falling into a “roll-way” leading to the basement of defendant’s block of stores, by reason of alleged negligence of the defendant in leaving the roll-way unfenced and unprotected. The u defendant was the owner of the block of stores on the west side of State street, in Augusta, opposite the court-house, known as Concert Hall block, and consisting of four stores. The south tene-mont was occupied as a drug store by defendant’s tenant, and defendant’s counting-room was in the next store northward. Between the drag store and defendant’s counting-room, on the promises of the defendant and within one foot of the west line of the sidewalk, was a roll-way, under the control of the defendant, leading to the basement of the block. In front of the three stores north of the roll-way was a continuous platform three feet and eight inches wide with two continuous steps, each sixteen inches wide. The platform and steps were all on defendant’s land, the first step commencing in the west line of the sidewalk and extended from the north end of the block down to the roll-way. Directly south of the roll-way were four narrow steps leading to the drug store. The roll-way was unprovided with railing or other safeguard, except buttresses rising nine inches above the level of the platform. The distance from the top of the buttresses to the bottom of the roll-way was seven feet and five inches. Under the direction of the presiding judge the jury took a view of the premises. The plaintiff testified that she visited the premises about seven and one-half o’clock on the evening of December 11, 1866, for the purpose of having a business interview with the defendant at his store; that not knowing which one of the stores -was occupied by him, she went upon the platform near the north end of the building and looked at the doors as she 'walked along to ascertain; that seeing a light in the drug store at the south end, she decided to go in there and inquire for him; that not knowing of the existence of this roll-way, but supposing that the platform continued past the entrance to the drug store at the south end of the block, she walked directly on, stumbled over the north buttress and fell into the roll-way ; whereby she was severely cut and bruised and her spine badly injured. The evidence for the plaintiff tended to show that it was a dark night, that little or no light was reflected upon the platform north of the roll-way, and that the roll-way itself was utterly dark at the time of the accident. The evidence for the defendant tended to show that at the time of the accident there were brilliant lights in the- windows nearest the roll-way and also a light in the basement, and that the plaintiff was looking in at the window when she fell. The presiding judge instructed the jury, inter alia, as follows: “'It seems.that neither the platform nor the cellar-way were within the limits of the street. So that for those who had occasion to travel on the public sidewalk, if they saw fit to go upon this platform, having no business there, and thereby sustained an injury, the defendant would not be liable. But for all persons who had occasion to go upon the platform in order to enter either of the stores of the defendant on legitimate business, he would be liable for all damages occasioned by these erections, provided they were unsafe or dangerous. You have been and viewed the premises, and taking the evidence of your own senses, it will be for you to say whether that cellar-way was unsafe or dangerous. “ The next question is, was the plaintiff legitimately upon the sidewalk or platform ? You have heard her statement as to her business with the defendant. It is unnecessary for me to allude to the testimony, it is all with you. If you find that she was legitimately on the platform, then the second allegation is made out. “ Then the question arises, was she in the exercise of common and ordinary care at the time of this accident ? You perceive that the platform was continued from the north end of the block down to this cellar-way, so that a person could go from one store to another on this platform, but could not go to the drug store in the same block. In relation to the quantity of light at the time of the accident, you will look at the testimony. It is a question entirely for you. The burden of proof is upon the plaintiff to satisfy you affirmatively of these three allegations. If she fails in one or all of them the defendant will be entitled to your verdict. “ There is no disagreement as to the questions of law. I have given them to you as they have been understood by both counsel. It is, therefore, a pure question of fact for you to consider, as to these various propositions.” The jury returned a verdict for the plaintiff, and assessed damages in the sum of $1,250. cited Indemaur v. Dames, Eng. Law Rep. 1 C. P. 274, and 2 C. P. 811; Hadley v. Taylor, 1 C. P. 58; Regina v. Watts, 1 Salkeld, 357; Oheetham v. Hampson, 4 Term R. 318; Rockwood v. IFt’&ojt, 11 Cush. 221; Lowell v. Spauld-ing, 4 Cusli. 277; Davis v. Jenning, 1 Met. 221. The court submitted to the jury the question whether the plaintiff was legitimately upon the sidewalk or platform. This instruction was wrong in two respects: first, there being no dispute about the facts, it became purely a question of law whethor plaintiff was legitimately on the platform or not; second, the court made no distinction between being on the platform, at the point where the accident happened, and being “ on the platform"’ generally. It is seven times repeated, “if she was legitimately upon the platform.” A customer might have business at the north store, and so would be “ legitimately on the platform.” Then he might loaf along by the other stores, withoút any business, till he reached the buttress and fell over. Would the court say he could recover ? This instruction was too broad and indefinite, and calculated to mislead the jury, as it did. The plaintiff has proved, conclusively, that she was going to the drug store at the time of the injury. The law required her to go in the way provided and held out by the owner, by construction or other acts, and allowed her to go in no other way. Todd v. Railroad, 7 Allen, 207; Sweeny v. Railroad, 10 Allen, 368; Chapman v. Rothwell, EL, Bl. and El. 168; Hounsel v. Smith, 7 C. B. (n. s.) 738; Pllliot v. Pray, 10 Allen, 378; Zeebisch V. Tarbell, 10 Allen, 885. But the strongest case is that of Bancroft v. Railroad, 97 Mass. 275. Now, in the case at bar, the steps leading to the drug store are no part of the platform and never were. They are not constructed on the same plan, but consist of four narrow steps, instead of two steps and tbe broad platform. These stairs being the only means of access to the drug store provided by the owner, the law requires every- person, having business at that store, to take this provided way, and the defendant cannot be responsible when a person takes any other way, for he has held out' no other way to the public to visit this store. The plaintiff undertook to go there, not by the way provided by defendant, the straight and narrow way, but by a way of her own invention, along the platform, over the buttress, and across the cellar-way, and so, in the language of Chief Justice Bigelow, in Bancroft v. B,ailroad, she “voluntarily incurred-a risk, for the consequences of which she cannot hold other persons responsible.”