DE GRAF v. ANGLO CALIFORNIA NAT BANK OF SAN FRANCISCO (1938)

Plaintiff sought damages for injuries sustained in a fall into an open elevator shaft in a building owned by defendants. Upon a trial by jury, plaintiff had judgment. Defendants appeal from said judgment and from the order of the trial court denying their motion for judgment notwithstanding the verdict.

The building was known as 557 Market street in San Francisco and it extended from Market street in the front to Stevenson street in the rear. It was a three-story office building, the tenants consisting mainly of manufacturers' agents. Plaintiff was the manager of the Catalog Filing Company, one of the tenants on the third floor.

The first floor of the building consisted of a large display room provided by defendants for the use of the tenants. A passenger elevator was located near the front thereof and defendants furnished an operator for said elevator during regular business hours. There was also a flight of stairs near the front of the building permitting passage to and from the various floors. At the rear of the display room was a shipping room which could be entered from the display room or from Stevenson street. The freight elevator shaft adjoined this shipping room and there were doors between the shipping room and the elevator shaft. It was into this shaft that plaintiff fell on the night of November 14, 1936.

The question of plaintiff's status at the time and place in question is raised on this appeal and it is therefore appropriate to set forth certain further facts bearing upon this question. There is no evidence showing the terms of the tenancies of any of the tenants of the building and for aught that appears, there may have been no express agreements between the owners and the tenants other than oral agreements for month to month tenancies at specified rentals. It appears that it was customary to lock the front door of the building each day at the end of the regular business hours and at 1:30 p.m. on Saturday, but any tenants who desired keys to the building for the purpose of entering at other times were furnished with the same. It further appears that the Stevenson street door was left unlocked at times on Saturday afternoons on account of delayed freight. No operator was furnished for the freight elevator at any time but the tenants and their employees operated said freight elevator whenever they had occasion to do so. There was also evidence to show that it was used by the tenants for passenger service without objection. In fact, one of the tenants, called as a witness by defendants, testified he and his assistant had used said freight elevator on certain occasions for passenger service in getting up to his office at night. This witness so used said elevator on the night of the accident. Plaintiff had used said elevator but had not previously had occasion to use said elevator at night. His business apparently had not required his presence in the building at night and he had not asked for a key to the building.

The accident happened on November 14, 1936, on which night a parade was held in celebration of the opening of the bay bridge. This parade was to pass along Market street in front of said building. Plaintiff had been advised by the manager of the building that said building would be kept open on that evening. At about 6:30 that evening, plaintiff entered the building with his wife and other members of his family. The passenger elevator was not running and plaintiff decided the family would view the parade from the sidewalk. He further decided to obtain some chairs and boxes from his office on the third floor and to use the freight elevator for the purpose of obtaining the same. He therefore walked through the large display room which was lighted and into the shipping room which was not lighted except by some indirect lighting through transoms from the toilet which adjoined the shipping room and from the display room. The condition of the shipping room was described in various terms by the witnesses, but it is sufficient to state it was dark but not too dark for plaintiff to see the doors to the elevator, which were open.

The freight elevator may be described as similar in many ways to the freight elevators in general use. It was a large elevator with no top but with a solid board siding which appears to have extended practically all the way around three sides thereof. It was suspended by cables attached to the overhead metal beam of the elevator. The doors to the elevator were double doors which were very high and contained large glass panels. Said elevator was normally operated by entering, closing the doors and merely pulling on a rope or cable to start and stop the same. It was so designed that, except by use of the emergency release, which will be hereinafter mentioned, it could not be operated unless all the elevator doors at all floors other than the basement were fully closed. Furthermore, the doors were so designed that they could not be opened from the outside at any floor, other than the basement, even though the elevator was resting at that floor. This last statement should be qualified but only to the extent of stating it was physically possible to open said doors at any time by the difficult and unusual method of prying the double doors apart and then reaching in and releasing the latch. By reason of the design of said elevator, it was customary to keep said elevator at the first floor with the doors open when said elevator was not in use and the owners maintained a large sign in the elevator reading “Elevator Must Be Returned to First Floor When Empty”.

The elevator was equipped with an emergency release which could be used in an emergency for the purpose of operating said elevator while the doors were open. Said emergency release, as its name implies, was not intended for ordinary use. On the contrary, one of the elevator safety orders issued by the Industrial Accident Commission, being order No. 3013/434, provided, “The emergency release shall be so arranged that to operate the car under emergency conditions it shall be necessary for the operator to break a glass cover protecting the emergency release and to hold the emergency release in operating condition. The emergency release shall be so constructed and installed that it cannot be readily tampered with or plugged into the operating position.” The emergency release on this freight elevator was not in the prescribed condition at the time in question. The glass cover had been previously broken and it had remained in that condition in violation of said safety order for at least several months preceding the happening of the accident, but it was in working order November 14, 1936, and when examined November 17, 1936.

The elevator was also equipped with an electric light which was not lighted at any time on the night in question so far as the evidence shows. Said light was located in a protected and inconspicuous place, high on the side of the elevator between two braces connecting the overhead beam and the side beam of the elevator.

Returning to the events on the night of the accident, it appears plaintiff boarded said elevator at the first floor and lit several matches in an attempt to locate a light in the elevator. He was unsuccessful in his search for the light and he proceeded to run the elevator to the third floor where he obtained the desired chairs and boxes. He then returned the elevator to the first floor and left it there with the doors open as he had found them. He took the chairs and boxes to the street, witnessed the parade and then went to the shipping room for the purpose of using the elevator to return the chairs to his office. The conditions were apparently the same as when he had left the elevator. Plaintiff saw that the door was open and, assuming the elevator was still at the first floor, he stepped across the entrance way with a chair in either hand. The elevator had been moved to the third floor during plaintiff's absence from the building and he fell down the shaft to the basement. After the plaintiff had taken his chairs out of the elevator on the first floor and before he returned, Mr. Winter and Mr. Mullin, also tenants on the third floor, had also used the elevator and had forcibly parked it at the third floor.

Cuvier Green was a tenant of the building doing business as Catalog Filing Company. That company occupied rooms on the third floor. The owner of the building owed to the lessee the duty of exercising ordinary care to keep the stairway, corridors, and elevators in a reasonably safe condition. Reuter v. Hill, 136 Cal.App. 67, 72, 28 P.2d 390. The plaintiff was the manager for Catalog Filing Company and to him the lessor owed the same duty it owed to his employer. The plaintiff was therefore entitled to go to his offices at any time, day or night, unless the terms of the tenancy otherwise provided. Nothing to the contrary appears in the record. The fact he was told by the management that the building would be open to receive the tenants and their friends for the purpose of viewing the parade neither extended nor limited the rights of the plaintiff.

The defendants assert that they were not guilty of negligence—that they did not leave undischarged any duty which they owed to the plaintiff. The latter controverts that assertion and states that the defendants were negligent because (1) they failed to have a glass cover over the box in which was located the emergency relief switch which controlled the doors of the elevator; (2) they failed to maintain a light in the elevator; and (3) they failed to maintain a light in the shipping room. Before discussing those specifications it should be noted there was no evidence showing that anyone could have anticipated any person would on that evening have occasion to visit or use the rear portion of the building, and, in particular, the freight elevator. The first specification was in no manner shown by the evidence to be in any manner connected as a cause, proximate or otherwise, of the accident. In 19 California Jurisprudence 636, the author says: “The principle that violation of statute or ordinance imposing a duty is negligence per se is subject to the limitation that the act or omission must contribute directly to the injury; if it does not, it matters not how improper or illegal the act may have been in the abstract.” The plaintiff contends that because the glass was missing it was an invitation to use the emergency device whether an emergency existed or otherwise. The same thing could be said regarding prying open the doors of the elevator—an act which it is admitted could be done. It is sufficient to state there was no evidence that either act was done, nor that either act was a proximate cause of the plaintiff's injury. Nor was the failure to have a light in the shipping room, or a light in the elevator, an act of negligence on the part of the defendants. The plaintiff cites no authority to the effect that the owner of an office building is under any duty, in the absence of a contract to the contrary, to keep any portion of said building lighted at night. The plaintiff was invited to go to the building and witness a parade to be held in Market street. It will not be controverted that the Market street side of the building should have been and that it was lighted. No part of that invitation was so broad as to be considered an invitation to inspect the entire building. There is not a particle of evidence that it was. The rule applicable was stated by the Supreme Court of Massachusetts in Blaufarb v. Drooker, 251 Mass. 201, 146 N.E. 242, 39 A.L.R. 291, in the following language [page 243]: “But the plaintiff had no greater rights in the use of the premises than the tenant, to whom the defendant owed no duty except to maintain the entry and stairs in the same condition they were in at the date of letting. In the absence of evidence that the little hallway or entry was lighted when the tenancy began, the failure of the defendant thereafter to light it, or to reconstruct the stairs, furnishes no proof of negligence.” The defendants also assert that the plaintiff assumed the risk of the injury. Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144.

The plaintiff says it may not be claimed he assumed the risk resulting from defendants' failure to have a glass over the relief switch and the resulting consequence, viz., someone moving the elevator without closing the doors. We think he is mistaken. If on attempting to board the elevator the plaintiff was exercising due care for his own safety he was entitled to assume that others would obey the law and had done so. But, when as in the instant case, under the uncontroverted facts, the plaintiff was exercising no care whatever, but groping through the darkness, he was not entitled to make any such assumption. When, nevertheless, he proceeded as shown above, he assumed all risks attendant on his movements. One of the leading cases in America on that subject is Miner v. Connecticut River R. Co., 153 Mass. 398, 26 N.E. 994. In that case, 26 N.E. at page 995, the Supreme Court of Massachusetts said: “Independently of any relation of master and servant there may be a voluntary assumption of the risk of a known danger, which will debar one from recovering compensation in case of injury to person or property therefrom, even though he was in the exercise of due care. In other words, it may be consistent with due care to incur a known danger voluntarily and deliberately; and this may be so when the danger arises from the known or apprehended neglect or carelessness of others. Ordinarily, in actions to recover damages for injuries to person or property, an instruction as to the effect of contributory negligence on the part of the plaintiff will cover all that need be said to the jury upon this branch of the case. But the principle that one may be debarred from a recovery when he voluntarily assumes the risk is not identical with the principle on which the doctrine of contributory negligence rests, and in proper cases this ought to be explained to the jury. One may (with his eyes open) undertake to do a thing which he knows is attended with more or less peril; and he may, both in entering upon the undertaking and in carrying it out, use all the care he is capable of; but whether or not he thereby assumes the risk may depend on other circumstances. One may, without fault of his own, be in a situation where he must choose a perilous alternative. The degree of danger, the stress of circumstances, the expectation or hope that others will fully perform the duties resting on them, may all have to be considered.” That case has been repeatedly cited and followed in other jurisdictions. In the case of Campion v. Chicago Landscape Co., 295 Ill.App. 225, 14 N.E.2d 879, one of the appellate courts of Illinois in 1938 made an extended examination of the authorities. Having done so it reversed the judgment of the trial court which had refused to direct a verdict in favor of the defendant in an action in which the latter had pleaded and proved a defense based on assumed risk. See, also, Restatement of the Law “Torts”, secs. 331, 332 and 341 [a]; Schlemmer v. Buffalo, etc., Ry. Co., 220 U.S. 590, 596, 31 S.Ct. 561, 55 L.Ed. 596.

In view of the conclusions just expressed, it becomes unnecessary to discuss any other points presented by the defendants.

The propositions which we have discussed above were repeatedly presented to the trial court ending with a motion for judgment notwithstanding the verdict. From what we have said it clearly appears the last mentioned motion should have been granted.

The judgment is reversed and the trial court is directed to enter a judgment in favor of the defendants.

I dissent. Respondent was the manager of the tenant company and I am entirely in accord with the majority opinion where it holds that appellants owed the same duty of care to respondent as they owed to his employer and other tenants. Ordinarily a tenant of an office building has the right, by virtue of the tenancy, to enter the building at any time and to use those portions of the building, including its facilities such as elevators, which are used in common by the tenants of the building. While this right might be altered by lease or otherwise there is nothing in the record to show that the rights of any of the tenants of the building in question were restricted in any manner. The shipping room and freight elevator were furnished for the common use of the tenants and were so used. Appellants furnished no operator for the freight elevator at any time and the uncontradicted evidence shows that it was operated by the tenants and their employers whenever they desired, night or day, for either passenger or freight service. It therefore appears that respondent, by virtue of his status as the manager of the tenant company, was entitled as a matter of right to enter the building and to use the freight elevator at the time and place in question and appellants' claim that respondent was a mere licensee finds no support in the evidence.

On certain other points considered, I cannot agree with the conclusions reached in the majority opinion. I am of the opinion that there was ample evidence to support the implied finding of the jury to the effect that appellants were guilty of negligence which was the proximate cause of the injuries. Only one of the specifications of negligence need be considered, namely the failure to maintain a glass cover over the emergency release in violation of the safety order set forth in the majority opinion. The purpose of this safety order was obviously to prevent the type of accident involved in this case as well as other types of accidents. It was entirely foreseeable that the failure to maintain such cover over the emergency release would be likely to result in the operation of said elevator with the doors open and to create the hazard encountered by respondent. The evidence shows that the glass cover had been broken at least several months prior to the accident and that appellants had neglected to restore it to the prescribed condition during that time. The maintenance of said emergency release in that condition in violation of said safety order constituted negligence as a matter of law (Howell v. San Joaquin Light & Power Corporation, 87 Cal.App. 44, 261 P. 1107), and there was evidence from which the jury might infer that said negligence was the proximate cause of the accident. The evidence shows that after respondent had left the elevator at the first floor, it had been moved by other tenants and that the first floor doors remained open. Appellants produced certain tenants as witnesses who testified that they had operated the elevator to the third floor but had not left the doors open at the first floor or operated the elevator by use of the emergency release. A reading of the testimony of said witnesses, including their testimony regarding the drinking of alcoholic beverages on that evening, shows that the jury was justified in disbelieving portions of their testimony and in concluding that said tenants had left said doors open and had operated said elevator by use of the emergency release. Such action by the tenants would not break the chain of causation. Lacy v. Pacific Gas & Electric Co., 220 Cal. 97, 29 P.2d 781; Barbieri v. Law, 209 Cal. 429, 287 P. 464; Restatement of the Law of Torts, secs. 442–453.

Again, I cannot agree that it may be said as a matter of law either that respondent was guilty of contributory negligence or that he assumed the risk of injury. Jacobi v. Builders' Realty Co., 174 Cal. 708, 164 P. 394, L.R.A.1917E, 696; McKeon v. Lissner, 193 Cal. 297, 223 P. 965. The evidence showed that the normal position of the elevator, when not in use, was at the first floor; that there was a sign in the elevator directing that it be returned to the first floor when empty; that it normally could not be at any floor other than the first floor when the first floor doors were open; that respondent did not know that the elevator could be operated under any circumstances without all doors closed; that respondent had left the elevator at the first floor with the doors open and returned later to find the conditions apparently the same. Under these circumstances, I believe that the issue of contributory negligence and the issue of assumption of risk were issues for the determination of the jury and that the jury's implied findings on these issues are binding upon this court.

The majority opinion is based largely upon the case of Miner v. Connecticut River R. Co., 153 Mass. 398, 26 N.E. 994. The only point involved in that case was whether the defendant was entitled to an instruction on the issue of assumption of risk. On page 995 of 26 N.E. of the opinion, the court said: “We have not to consider whether upon the evidence the defendant was entitled to prevail on this ground, but only whether he was entitled to go to the jury upon it.” Here the jury was instructed upon that issue at the request of the appellants and the jury decided that issue adversely to appellants. The cases of Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144, and Campion v. Chicago Landscape Co., 295 Ill.App. 225, 14 N.E.2d 879, are also cited in the majority opinion. These cases involved respectively injuries to a spectator at a baseball park and injuries to a participant in a golf game. The hazard in each of said cases was one of which the injured person had full knowledge and the injured person was said to have assumed the risk. In the present case, the jury was justified in finding that the hazard was one caused by the negligence of appellants of which the respondent had no knowledge. It therefore cannot be said as a matter of law that respondent assumed such risk.

I find no prejudicial error in the giving and refusing of instructions as claimed by appellants and in my opinion the judgment and the order denying the motion for judgment notwithstanding the verdict should be affirmed.

STURTEVANT, Justice.

I concur: NOURSE, P.J.