Harris v. Smith

NOURSE, P. J. In a trial by the court without a jury the plaintiffs had a judgment for $1500, in addition to special damages, for injuries incurred by Hilda Harris when she fell upon the floor of an elevator operated by defendant Smith. The appeal is taken by this defendant alone.

The facts are without material dispute and are fairly stated by respondents as follows:

“Between 5:30 and 6:00 o’clock P. M. on Tuesday, March 14, 1939, the respondents, husband and wife, desiring to rent an apartment, called on appellant, who operated an apartment house, to look at an apartment which was for rent and which the husband had seen earlier in the afternoon. They met the appellant in the lobby which was heavily carpeted and over which the three approached the elevator for the purpose of being carried to an upper floor on which the apartment was located. The appellant summoned the elevator, opened the door thereof, and stepped back to one side to enable respondents to enter. The elevator floor was covered with linoleum which had been waxed and polished by a new employee on Saturday, the 11th, three days prior to the accident. The elevator was lighted with a 25 watt electric light placed in a globe and set high in the dome of the elevator. The floor of the elevator was even with that of the lobby. The moment the door was opened the respondent, Hilda Heide Harris, stepped at once from the said heavily carpeted lobby floor onto the said waxed and polished linoleum floor of the elevator, taking a normal step with her right foot. She wore walking shoes with rubber tipped heels. Upon so stepping in and upon said floor her right foot shot out from under her and she skidded diagonally across the cage and crashed her knee against the metal on the far side of the cage and sustained injury.”

The trial court found: “That the said floor of said elevator was then and there on said 14th day of March, 1939, covered by linoleum, of the kind commonly known as battleship linoleum ; that the surface thereof was waxed and polished; that said surface was left bare and without any covering up to and including the said 14th day of March, 1939; that no rubber or leather mat or carpet or any other form of safety appliance or application, was superimposed upon said waxed and polished linoleum for the purpose of preventing passengers from slipping and falling thereon; that rubber and [696]leather mats and other appliances have been devised and used upon linoleum and other coverings of elevator floors and that the use of same affords a greater degree of safety to passengers in such elevators in preventing them from slipping and falling on such floors. ’ ’