Opinion
No. 22037
Decided April 30, 1930.
Negligence — Child injured falling down freight elevator shaft adjacent to alley — Building owner's duty not to wantonly injure, and to exercise care — Ordinance relating to openings in street, inapplicable — Attractive nuisance not established by evidence — Directed verdict — Child not discovered in perilous position, or exposed to hidden dangers.
ERROR to the Court of Appeals of Franklin county.
This is a proceeding in error to reverse the Court of Appeals of Franklin county. The original action was brought in the court of common pleas by C.E. Forsha, as the next friend of Charles E. Forsha, Jr., a minor. It was for damages as the result of a fall by the child down an elevator shaft on the premises of the Sharp Realty Company, plaintiff in error.
The record discloses that upon the date of the injury, Thanksgiving Day, November 27, 1926, and for some time prior thereto, there had been maintained a building known as the Stoneman Building, at No. 395 South High street in the city of Columbus. This property was in the legal control and custody of the plaintiff in error. At the back part of said building, opening upon Wall street, sometimes referred to in the testimony as an alley, there was maintained and operated a freight elevator for the use of occupants of said building. At the opening of the door leading to the freight elevator, and extending the width of two feet, there was a concrete loading platform about eight feet long and two feet high, which loading platform was outside the building but entirely within the property line of the property of plaintiff in error and immediately adjacent to the street, to which loading platform those moving articles to and from the building sometimes backed their trucks or wagons. Leading from the edge of the concrete loading platform and inside the building was a space of one to two feet, leading to an elevator shaft which had a depth of about eight or ten feet and extended upward to the various floors of the building.
There was a rolling steel door, sometimes referred to as a fire door, at the edge of the concrete loading platform and flush with the line of the building. At the edge of the elevator shaft was a wooden gate, its purpose being to move automatically as the elevator ascended or descended.
On the day in question, the testimony tends to show that the so-called fire door was open, and that the wooden gate was also raised — the elevator at the time of the accident standing at one of the upper floors of the building.
Charles E. Forsha, Jr., at that time about nine years of age, with his brother, was proceeding along the alley, or Wall street, so-called, when Charles climbed upon the cement or concrete loading platform, went inside the building to the edge of the elevator shaft, and looked up at the elevator. While so engaged he fell into the elevator shaft and sustained serious injury.
The evidence also tends to show that the boys of the neighborhood played in this alley, and that at one time the janitor or caretaker of the building ordered the boys away from the elevator in the rear of the building. It does not appear whether or not the Forsha boys were among their number. There is also some evidence in the record that the fire door was defective at the lower part, and that not only on the day in question was it raised, permitting access to the building, but that it was usually kept open; that the wooden gate at the edge of the elevator at the time of the accident was raised, or at any rate not in a position to guard the edge of the elevator shaft. It is also in the record that the agent of the owner was in charge of the building, including the elevator, and the owner was bound to make necessary repairs.
At the close of the plaintiff's testimony, a motion was made by the defendant below, plaintiff in error here, for a directed verdict in its behalf, which motion the court of common pleas sustained and a verdict was so directed. From such action on the part of the court of common pleas error was prosecuted to the Court of Appeals, which court reversed the judgment of the court of common pleas and held that the record disclosed a case which should have been submitted to a jury. Error is now prosecuted to this court to reverse such judgment.
Mr., Clark V. Campbell, and Messrs. Booth, Keating, Pomerene Boulger, for plaintiffs in error.
Messrs. Cowan, Adams, Adams Jackson, and Mr. U.G. Hahn, for defendant in error.
It must be conceded that the child had no lawful mission upon the premises in question. Plaintiff in error claims that he was not an invited licensee, but was in a legal sense a trespasser. Defendant in error takes the position that, by reason of his tender years and the well-known tendency of children to wander at will upon the property of others, he was an implied licensee. We think, however, in this state the duty of the owner of the premises was no more than not to wantonly injure the child, or not to expose him to hidden dangers, traps or pitfalls, and to exercise ordinary care toward him after discovering him to be in peril.
The principles of law applicable to this case have been announced by this court in the cases of Railroad Co. v. Harvey, and Swarts v. Akron Water Works Co., 77 Ohio St. 235, 83 N.E. 66, 19 L.R.A. (N.S.), 1136, 122 Am. St. Rep., 503, 11 Ann. Cas., 981, and Hannan, Admr., v. Ehrlich, 102 Ohio St. 176, 131 N.E. 504. Each of these cases involved a case of children of tender years going uninvited upon private property and sustaining injury. We feel constrained to follow the principle announced in those cases, which is above stated.
Our attention has been called to the United States Supreme Court cases, Railroad Co. v. Stout, 84 U.S. (17 Wall.), 657, 21 L.Ed., 745, and Union Pacific Rd. Co. v. McDonald, 152 U.S. 262, 14 S.Ct., 619, 38 L.Ed., 434. While much reliance is placed thereon by defendant in error, we are not unmindful that the case of United Zinc Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct., 299, 66 L.Ed., 615, 36 A. L. R., 28, "has been regarded as greatly weakening the 'turntable doctrine.' "
However, the case of Railroad Co. v. Stout, supra, was under consideration by this court in Railroad Co. v. Harvey, and Hannan, Admr., v. Ehrlich, supra.
As to the case of De Groodt, Exrx., v. Skrbina, Admr., 111 Ohio St. 108, 144 N.E. 601, 602, 38 A. L. R., 591, the injury occurred upon a public street, and, as said in the opinion, "does not present a situation where the instrumentality is upon private premises." For that reason we do not regard that case as decisive or controlling in the present instance. Nor do we think the ordinance relative to openings in the street, etc., is applicable; because the elevator shaft was entirely on private property and this child had to leave the street, climb on the concrete loading platform and go inside the building before he came to the opening into which he fell.
As to the owner having reason to anticipate the presence of children inside the building, where the elevator shaft was located, the record shows the managing agent testified he had been told that the janitor had chased boys away from the rear of the building; and a neighbor testified to having seen children playing in the alley around there.
Admitting full proof of such facts, this does not show more than the use of the alley, and does not show the presence of children inside the building or on the premises of the owner; nor does the proof show any "dangerous active operations" carried on which might have attracted children from the alley, but at most only the existence of a "visibly dangerous statical condition."
Attention should be called to the distinction between the statical condition of premises and the condition of premises made perilous by the active and negligent operation by the owner. This distinction is clearly pointed out by Jones, J., in the case of Ziehm v. Vale, 98 Ohio St. 306, 120 N.E. 702, 1 A. L. R., 1381, the second paragraph of the syllabus in that case reciting:
"The principle of nonliability applied in the Harvey case, supra, does not apply where the statical condition of the premises is made perilous by the active and negligent operation thereof by the owner."
In the case at bar, there was simply the statical condition of the elevator pit into which the child fell; there was no active operation of any kind by the owner.
Until the case of Hannan, Admr., v. Ehrlich, supra, is reversed or modified, we are required to follow the rule therein announced.
We recognize that the trial court, in passing upon the motion for a directed verdict at the close of the plaintiff's testimony, was required to apply the rule that all the evidence introduced in the case should be considered in the most favorable light to the plaintiff, and that whatever the evidence tended to prove must be taken as fully proved. Nevertheless, there being no question of the discovery of the child in a perilous position, and the danger to which he was exposed not being within the class of hidden dangers, pitfalls or obstructions, but there being simply a static condition which was open and apparent to the child or any one else upon the premises at the time and place in question, we are of opinion that the court of common pleas was right in directing a verdict, and the judgment of the Court of Appeals must be reversed and that of the common pleas affirmed.
Judgment of the Court of Appeals reversed and that of the common pleas affirmed.
KINIKADE, ROBINSON, JONES, DAY and ALLEN, JJ., concur.
MARSHALL, C.J., and MATTHIAS, J., not participating.