25 P.2d 719 | Colo. | 1933
JOHN Gotch sued the K. and B. Packing and Provision Company for damages for the death of his wife. The trial court granted the company's motion for a nonsuit and dismissed the action. Gotch seeks a reversal of the judgment.
The company operates a slaughter house and packing plant in Denver. Its building is large. In the southwest corner on the ground floor is the office, and in the southeast corner is a door between the loading platform and the shipping room. At the north end of the shipping room is a door opening into the slaughter room. On the day of the accident that door was open. Immediately to the east of that door is a freight elevator shaft that extends from the basement to the second floor. The elevator gate did not work automatically, as required by the *278 city ordinance, but had to be raised and lowered by hand. On the day of the accident the elevator was on the second floor and the elevator gate was up, leaving the shaft unguarded on the ground floor.
Three or four times a week for about four years Mrs. Gotch had taken lunches to their son, Mike. She would deliver them to him in the slaughter room, where he worked as a butcher. On December 15, 1930, Mrs. Gotch brought a lunch for her son. She passed through the doorway from the platform into the shipping room, and proceeded toward the slaughter room, but instead of entering the open doorway to the slaughter room, she, for some unexplained reason, stepped into the unguarded elevator shaft. She fell down the shaft to the basement and was killed.
[1, 2] 1. Trespassers and mere licensees take the premises as they find them. The owner of premises is not under the same obligation to trespassers and licensees as he is to those who are upon the premises by his express or implied invitation. To the latter he owes a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed defects. To the former he owes no such duty, but as to them he is under obligation not wilfully and intentionally to injure them, or, as it is sometimes expressed, not to injure them after becoming aware of their presence. Of course, he must exercise reasonable care, after becoming aware of their presence, not to injure them by any affirmative act or force set in motion. Averch v. Johnston,
[3, 4] 2. The city ordinance referred to above does not change the rule. In the absence of such ordinance, it would be for the jury to determine whether or not it was negligence to equip the elevator shaft with gates that did not close automatically. The effect of the ordinance is to take that question away from the jury and make a failure to equip the elevator shaft in the required manner negligence as a matter of law. The ordinance does not confer a right of action for injuries sustained by trespassers or by mere licensees.
[5] 3. As there was no evidence of a violation of any duty owing to a trespasser or a mere licensee, the controlling question is this: Was Mrs. Gotch an invitee, or was she a trespasser or a mere licensee? If she was an invitee, the plaintiff, in view of the evidence, was entitled to have the case submitted to the jury, and the judgment is wrong and should be reversed; if she was a trespasser or a mere licensee, the judgment is right and should be affirmed.
There is no evidence that any officer or agent of the company knew of Mrs. Gotch's custom to take lunches to her son and deliver them to him in the slaughter room; but if we assume that they must have known because her visits extended over a period of several years, there was merely an implied license by reason of the fact that they did not forbid her to enter the shipping room or the slaughter room. There was no invitation, either express or implied, for her to go there. She was not an employee or a customer. She had no business to transact with the company. The purpose of her visit was of no interest or advantage to the company, but was for the personal convenience of her son, to save him from going home or to some restaurant for his lunch. He had a half-hour for lunch, and was not required to remain upon the premises during that time. Indeed, his lunch was brought to him *280
only three or four times a week. In such circumstances Mrs. Gotch, if not indeed a trespasser, was a mere licensee. 20 R. C. L. p. 69; 2 Cooley, Torts (3d Ed.), p. 1265; Watson v. Manitou Pikes Peak Ry. Co.,
Counsel for the plaintiff rely upon Bustillos v. SouthwesternPortland Cement Co. (Tex. Com. of App.), 211 S.W. 929, to sustain their contention. But that case differs in some important particulars from the case at bar. There, a child 15 years old entered the premises for the purpose of carrying a lunch to one of the employees. While passing along a footpath, he slipped and fell into a burning pit. The premises were not fenced and, with the defendant's knowledge and consent, the footpath was constantly used by pedestrians, both old and young. Children were permitted to come to the plant daily for the purpose of bringing lunch to the employees, many of whom, on account of their hours of work, did not havetime to leave the plant at the noon hour. It was held that these facts were sufficient to raise the issue of an implied invitation to the child to come upon the premises upon the errand in which he was engaged. The court said: "The defendant permitted deceased and other children to come upon its premises and knew they traveled the narrow path bordering the pit. The slightest regard for their safety would have suggested the danger in passing so near a pit beneath the surface of which was concealed a burning mass into which they might accidentally slip and fall. Under the facts alleged in the petition, defendant will not be permitted to say that deceased was a mere licensee to whom it owed no duty and for whose safety it was under no obligation to make provision." True, the court also remarked that the child's errand "was not only for a purpose connected with the business in which defendant was engaged, but it was in the interest and for the benefit of defendant through a necessary service to one of its employees." Whether or not that statement correctly described the errand of the boy, we hold that *282 under the facts disclosed by the record in the present case, it does not correctly describe the errand of Mrs. Gotch.
The fact that Mrs. Gotch's habit of carrying lunches to her son several times a week extended over a period of about four years, does not change her status from that of trespasser or licensee to that of invitee. As we have said, there is no evidence that any of the company's officers or agents had knowledge of any of Mrs. Gotch's visits; but assuming that they had such knowledge, the most that can be said is that during that time she was not denied admission to either the shipping room or the slaughter room; in other words, that there was a mere passive acquiescence in her repeated visits in circumstances that would not justify an inference that Mrs. Gotch entered the premises at any time upon the express or implied invitation of the company.
The judgment of the district court is right and is affirmed.