Opinion
No. 35175
Decided March 12, 1958.
Negligence — Stepping through door into hole in floor in daylight — Failure to look where stepping — No recovery for resulting injuries, when — Directed verdict.
1. It is at least as negligent for a person to step into a plainly visible hole in broad daylight as for such person to step in darkness into that hole when he cannot see it.
2. One who, without looking, steps through a door into a room and is injured by stepping into a hole which he could easily have seen if he had looked cannot recover for such injuries unless it appears that reasonable minds could conclude that such person had every reason to anticipate that there would be no potential danger in so stepping. ( Kokinos v. Ohio Greyhound, Inc., 153 Ohio St. 435, distinguished.)
APPEAL from the Court of Appeals for Portage County.
Plaintiff instituted an action against defendant in the Common Pleas Court of Portage County to recover for personal injuries resulting from a fall, which she claims was proximately caused by defendant's negligence on June 11, 1953, in failing to replace a cement cover over a hole in the cement floor of a building, in failing to take measures to warn of that opening in the floor and in failing to place a barricade around that opening.
Early in 1953, plaintiff's husband had completed acquisition of several acres of land that had formerly been a sand and gravel bank and from which there had been considerable excavation so as to leave a small lake. There were two buildings on this land. The smaller building had been the former office. At that time, plaintiff's sons, aged 13 and 16, had been staying there almost every night. In the spring of 1953, some work was done on the land so as to provide a bathing beach. In June, the larger building was being remodeled so as to provide therein dressing rooms for men and women and a restaurant. It was planned to open the premises as a bathing beach of July 4 of that year. Plaintiff was familiar with the work going on on the premises as she lived only two or three miles away, had visited the premises often to watch the progress of the work thereon and had even swept the small building out, painted the walls and made up the cots used by her sons.
Defendant had been engaged as an independent contractor to do the electrical work in the remodeling of the larger building. There were at least six other workmen employed in fixing up these premises at the time.
On the afternoon of June 11, 1953, defendant went with plaintiff's husband to the smaller building to see why the electricity was not getting into that building. In order to get to the incoming electric cable, defendant lifted a 20-inch-square five-inch-thick cement cover from the cement floor and placed it on the floor away from the door. This left a hole about 18 to 20 inches deep at a location beginning about four feet from the threshold of the door. The door was about 30 inches wide and swung inward. Defendant had not finished his work in this hole at his usual quitting time, when he left the building and closed the door but did not replace the cover.
Shortly after, at about 4:30 p.m., plaintiff came to the premises with her mother, her sister and her sister's young children and showed them the progress of the work. Plaintiff then proceeded to show them the smaller building. As they entered, plaintiff was looking behind her and talking with them, and on her second step into the building she stepped into the hole and was injured. Plaintiff admitted that she had previously noticed that "there was a place that could be opened" in the floor, but testified that it had not been previously opened.
Plaintiff testified in part as follows:
"* * * We took a general tour; as far as I recall we looked at the big building to see what was done in there and I told them what was to be done yet, and we looked around to see what the graders and excavators had done, and the huge septic tank that had been built — the enormous size of that — and the children were interested in the water and we walked along the water's edge and along that; as I recall that was the last thing we did before we went to the small building.
"Q. What was your purpose in going to the small building? A. We had looked at all the things that were going on — the general repair and reconstruction and the confusion; it looked like quite a bit of work to my folks, and I said, `Come and see this — we have all the comforts of home — we even have a heating stove.' I pushed the door open — I was leading — and I walked in.
"Q. At the time you walked in there what were you doing? A. I guess I was talking.
"Q. Who were you talking to. A. My sister directly behind me — I must have been talking to her.
"* * * I think I was watching the children behind me and trying to talk to my mother and sister. I said, `Come on and see this — we had all the comforts of home — even a stove.' I pushed the door open — the beds were in disarray — I stepped over to let them in. The next thing I knew my sister was hauling me out of the hole.
"* * *
"Q. On the last time you were there a few days before, what was the condition as to what was in the building and how was it placed? A. How it was placed one day has no bearing on how it was placed the next.
"Q. Don't you remember seeing the beds in there — the bunks — and the stove? A. Yes.
"Q. Tell us where they were then — the last you remember before the accident. A. Before the accident we had pushed the beds first to one side then to the other so we could paint the walls.
"Q. Where did you leave them last. A. I don't know.
"Q. You have stated that you had seen this opening in the floor and noticed the cover, but you had never seen it out of the floor — do I understand you correctly? A. That's correct.
"* * *
"Q. It was a clear, sunny, warm summer day? A. Yes.
"Q. And that was the condition of the light at the time you started into the building? A. Yes, sir.
"Q. I understand you pushed the door open. A. I did.
"Q. And you were looking that way — talking over your shoulder to your sister, the children and your mother, is that correct? A. I don't remember where my head was but I believe I was talking to them as I opened the door — I would not be surprised if my head were over my shoulder.
"* * *
"Q. * * * As you walked through the door did you look at the hole? A. I don't believe I did.
"Q. Did you see the cover removed or sitting on the floor? A. No.
"Q. Had you been looking more or less straight ahead it would have been in your line of vision would it not? A. If I had been looking for it I could have seen it."
Plaintiff's husband testified in part:
"Q. As you stepped through the door could you see the cover was off the hole? A. Yes, sir.
"Q. It was plain to be seen then? A. That's right.
"Q. Could you see it from the threshold of the door with the door open? A. If you were looking, I believe you could."
At the conclusion of the plaintiff's case, the Common Pleas Court directed the jury to return a verdict for the defendant.
On appeal to the Court of Appeals, the judgment on that verdict was reversed and the cause was remanded for a new trial.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.
Messrs. Burroughs, Gillen Allen and Messrs. Loomis Jones, for appellee.
Mr. Seabury H. Ford, for appellant.
As we view it, the only question involved in the instant case is whether reasonable minds could determine that plaintiff was not guilty of contributory negligence, or, in other words, that she was, at the time of her injury, exercising ordinary care.
It may be observed that the conclusion of the Court of Appeals (that reasonable minds could determine that plaintiff had exercised ordinary care) does not require us either to reach a similar conclusion or to decide that such a conclusion is one which could not be reached by reasonable minds. The Court of Appeals by its judgment did not find as a fact from the evidence in the instant case that plaintiff had exercised ordinary care. It merely determined that reasonable minds could have so found.
We are in agreement with the contention of defendant and the conclusion of the trial court that it is at least as, if not more, negligent for a person to step into a plainly visible hole in broad daylight as for such person to step in darkness into that hole when he cannot see it. However, as the trial court recognized and plaintiff argues, the question still remains in the instant case whether the plaintiff, in the exercise of ordinary care, was as a matter of law required to look before she stepped through the door and into the hole. She was not, at the time of her stepping, confronted with the potential danger of an elevator shaft (see Flury v. Central Publishing House of Reformed Church in United States, 118 Ohio St. 154, 160 N.E. 679, and Johnson v. Citizens National Bank of Norwalk, 152 Ohio St. 477, 90 N.E.2d 145, 34 A.L.R. [2d], 1361) or even with the possible dangers which might be lurking in some place where she had not previously been (see Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St. 167, 160 N.E. 683 ).
A reading of the opinion in that case indicates that it would probably have been decided by this court against the plaintiff except for the scintilla (included in her conflicting testimony) that tended to indicate her fall was not the result of a voluntary step.
In reaching its determination that ordinary care did not require plaintiff as a matter of law to look before she stepped through the door and into the hole, the Court of Appeals stated that this "is a case where the plaintiff was walking upon a known course where she had no reason to anticipate danger." In substance, this is plaintiff's position. It may be that plaintiff would not as a matter of law be required to look in such a case before she stepped through the door and into the hole (but see McKinley v. Niederst, 118 Ohio St. 334, 160 N.E. 850 ). However, we do not believe that the evidence discloses any such case.
Although plaintiff may not have known or anticipated any change in the particular building where she fell, all the evidence discloses that there was a considerable amount of work being conducted on these premises, that that work involved substantial physical changes of the premises, and that plaintiff knew about that work and that it involved such changes. In other words, she cannot reasonably argue that she was lulled into a feeling of security by any reasonable belief that everything was sure to be just the same in the building where she fell as it had been when she was there several days before. Cf. the borderline case of Union News v. Freeborn, 111 Ohio St. 105, 144 N.E. 595, where the condition of premises was changed shortly after plaintiff had previously passed over them and just before she was injured.
Our conclusion is that one who, without looking, steps through a door into a room and is injured by stepping into a hole which he could easily have seen if he had looked cannot recover for such injuries unless it appears that reasonable minds could conclude that such person had every reason to anticipate that there would be no potential danger in so stepping.
Plaintiff relies on the case of Kokinos v. Ohio Greyhound, Inc., 153 Ohio St. 435, 92 N.E.2d 386. However, that case was an action by a passenger against a common carrier. A common carrier owes the highest degree of care to a passenger. Jones v. Youngstown Municipal Ry. Co., 133 Ohio St. 118, 12 N.E.2d 279. Since such a plaintiff may rightfully assume that such a defendant will exercise that degree of care (see Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274), that factor was undoubtedly considered by this court in determining in that case that there was a question for the jury whether the plaintiff therein had exercised ordinary care.
The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART and HERBERT, JJ., concur.
MATTHIAS and BELL, JJ., dissent.