Brown v. Stevens

1. Dangerous Premises — Trapdoor in Store Floor — Injury to Customer — Contributory Negligence. Where a' customer was told that he would find what he wanted " in the back part of the store, and, in walking back, was injured by falling into an open trapdoor in the middle of the floor space provided for the use of customers, held, that, unless properly warned, he had a right to rely on the safety of the floor, and was not guilty of contributory negligence, though he might have seen the opening had he looked. 2. Same — Negligence—Sufficiency of Warning. A storekeeper who knew that a customer, a stranger in the store, whom he directed to the rear of the store, had defective eyesight, and concedes that his appearance was not that of one in the possession of the ordinary faculties, did not perform his full duty, though not knowing he was deaf, in merely saying to him, in an ordinary tone of voice, to look out for the trapdoor, which was open, without telling him where it was; it being in the middle of the floor space provided for the use of customers, and where he could see persons standing around.

Error to Montcalm; Davis, J. Case by Christian Brown against George W. Stevens and Egbert G. Stevens, copartners as G. W. Stevens & Son, for personal injuries. From a judgment for plaintiff, defendants bring error. Plaintiff fell into an elevator opening in the floor of the defendants’ store, and was injured. He recovered a verdict of $700. The negligence alleged was leaving this opening unguarded, and giving no proper notice to the plaintiff of the danger. The defendants’ store was 100 feet long by 20 feet wide. The basement was 8 feet deep. The first floor of the building, which consisted of two stories, was the general salesroom, with counters along the north side nearly the entire length. On the south side were tables for crockery and goods of various kinds. About midway between the two ends of the store was a trapdoor extending from 6 to 8 feet north and south, and 4 to 6 feet east and west. It extended nearly across the entire space used for customers in passing to and fro. There was no railing around the opening, and no protection when the trapdoor was open for raising material from the cellar. At the time of the accident, two of the defendants’ employes were hoisting doors from the basement to the salesroom above; one being in the basement, and the other at the opening on the first floor. Some doors had just been raised, and the employe, assisted by a customer named Yogel, who happened to be standing near by, was pulling them away from the opening, when the plaintiff walked along the floor and fell in. Two other persons besides the employe and Mr. Yogel were standing around the opening. Plaintiff was 53 years old, of very defective eyesight, and always had been. In walking he stooped over, turning his head to one side, had a “shambling” gait, walked like a man intoxicated, and appeared to be cross-eyed. His hearing also was somewhat impaired. On account of these physical defects he was unable to do much labor, and the damages were limited to pain, suffering, and physical injuries. His intellect was not acute, but the court instructed the jury that- he had sufficient intelligence to be responsible for any notice or warning of danger given to him. Plaintiff lived in the country, had never been in the store “before but once, and knew nothing about the trapdoor or elevator. He went into the store to buy a corn-planter for a neighbor. Defendant Egbert G. Stevens was in the front part of the store, and told him he had some corn-planters in the back end. Plaintiff testified that he said something else that he did not understand. Plaintiff then went towards the back end of the store to see the corn-planter, and fell into the opening. Those standing about the opening saw him, and supposed he saw the opening. There was a window in the back end of the store, the light from which struck the floor a distance beyond the opening. ■ As plaintiff approached the opening no warning was given. He gave evidence tending to show a serious injury. The three persons standing around the opening testified that defendant Egbert came up to the opening after plaintiff fell, and stated that he did' not think about the hole being open at the time he sent plaintiff back to get a corn-planter. There was also testimony that Egbert said, {í I knew he was almost blind.” The record states that the defendants gave testimony tending to show that defendants were not aware of plaintiff’s defective eyesight, but that in walking he scooped over, turned his head to one side, had a shambling gait, walked like a man intoxicated, and appeared to be cross-eyed; that plaintiff had some conversation with Egbert G. Stevens about a corn-planter, then went out to the front door; that he subsequently returned into the store, and, while passing the office desk, Mr. Stevens said to him to be careful or look out, that the trapdoor was open.