I concur in that part of the opinion written by Mr. Justice BELT which reverses the judgment entered in the circuit court against the appellant, The United States National Bank of Portland, but dissent from that part which affirms the judgment as to Ex-Cel Pharmacy. To the latter corporation reference will hereafter be made as the defendant.
The area involved in this action was a space about three by nine feet in size in its floor dimensions. It formed a part of the rear portion of the defendant's drug store. One of its two nine-foot sides, that is, the one to the right, was the inside of the exterior wall of the building. The opposite wall consisted of the rear of some showcases which rose almost to the ceiling. One *Page 18 of the three-foot sides, which we may consider as the back of the room, was a solid wall. It, like the exterior wall to the right, admitted no light into the room. The other three-foot side was entirely open except for a gate, three feet, four inches high, the bottom of which was flush with the floor. The gate was the full width of the opening — three feet. Its hinges were on its right-hand side and it swung outward, that is, toward one entering. A section of the floor three by six feet in area, being the part nearest the gate, consisted of a door — the parties call it a trap door. Beyond the door was a regular floor. Upon the right-hand side of this door were two hinges by which it could be opened along its long side. When open it rested on one of its six foot edges and reclined against the wall to the right. In this position it permitted passage to a staircase which led to the basement. The staircase, like the door and gate, was three feet wide. The uppermost step of the stairs was immediately beyond the gate. Thus, when the trap door was down the space formed a room three by nine feet in size; but when the door was up, it assumed the form of a stair hall leading to the basement. The basement, besides containing a toilet and dressing room, was also used for storage purposes. The store's employees hung their hats, coats and aprons on hooks which were on the right-hand wall of this room. The aforementioned gate was equipped with a spring which kept it closed. There was no electric light in this room; nevertheless, sufficient light entered so that any garment hanging upon the wall could readily be seen. One of the plaintiff's witnesses testified that the room was not pitch-dark, and described it as "dim." The plaintiff gave the following testimony:
"Q. As a matter of fact, there was light that came in there into this little room so that you could see in *Page 19 there without any light being turned on if you really looked, is that not a fact? A. Yes, sir.
"Q. So that whether there was light on or off, if you really looked you could see back into this little room, couldn't you? A. Yes, sir."
She added that upon the occasion in question she had no difficulty whatever in seeing her "colored" apron which hung on the right-hand wall a little beyond the gate.
There was an electric light in the basement which was turned on by a switch located near the left upper corner of the gate. One who desired to open the gate and enter would take hold of the gate's left-hand side and swing it towards him, stepping back so as to permit the gate to swing open. Three or four inches from the place where he would take hold, the switch was located. When the light was turned on, the basement was illuminated and light was reflected against the basement stairs and landing. If the trap door was open anyone peering over the gate could see the steps, the landing and part of the basement. Thus, the light would warn him that the door was open. But if he saw no light after he had flipped the switch he would know that the trap door was closed and that he could safely walk ahead. As authority for these statements, the following is quoted from the testimony of one of the plaintiff's witnesses:
"A. If the light was on in the basement you could see a reflection of the light on the landing. * * * Yes, you could see that the trap door was open if the light was on in the basement."
Another of the plaintiff's witnesses testified:
"A. When the trap door was open and the light was on in the basement, naturally, you could see there was a light on in the basement. *Page 20
"Q. You could see down in the basement? A. Yes, you could see down in the basement.
"Q. If you turned the light on before you opened the gate and the trap door was open, you by standing there before you opened the gate could see that the trap door was open, couldn't you? A. Oh, yes, you could do that all right, you could tell that the basement was down there and that there was a light in the basement."
When the plaintiff was asked whether she could have seen whether the trap door was open or closed had she turned on the basement light, she replied: "If I had done so, yes, sir, I could have seen."
Three feet from the gate and opposite to it was a door leading into the prescription room, nine by nine feet in size. The latter was equipped with an electric light of 100 watts, operated by a switch immediately at the back of the plaintiff as she opened the gate. This light was not burning at the time the plaintiff opened the gate, but she could readily have turned it on. Had she done so, light reflected from it would have entered the room she was about to enter. Besides these means of determining whether the trap door was open or closed, there were still other methods available.
The plaintiff had worked in this small drug store for four months. She admitted that she was familiar with these lights and switches. She had been through the trap door, down the stairs and into the basement on several occasions. She knew that at times the trap door remained open. The majority quoted the following from the plaintiff's testimony: "I looked into the room and didn't see any light, and it didn't look to me like the trap door was open and I seen my apron and stepped in and reached for it." The door was actually open, and she fell down the stairs. The plaintiff was asked by the trial judge, "I would like to ask you whether or not this light was turned on in the basement *Page 21 when you arrived there at the gate?" and she replied, "No, sir, I looked in and it wasn't on." Next, in reply to a question asked by defendant's counsel, she answered, "I walked to the gate, and I looked straight in, straight down, to see if I could see a light." She was further asked, "But you knew if you so desired you could turn the light on in the basement, or could turn a light on in the prescription room? A. Yes.
"Q. On this occasion you didn't see fit to do so. A. I had looked in already and everything looked all right to me and there was no occasion to turn it on.
"Q. If it was so dark you couldn't see, how did you know everything was all right or not? A. It looked all right to me.
"Q. You couldn't see the floor in there? A. No, sir.
"Q. Then if you couldn't see the floor you wouldn't or couldn't know whether the trap door was open or closed, would you? A. No, sir."
These questions were followed by others in which she was finally asked whether she could have seen the staircase if she had turned on the basement light. She made the answer which we have already quoted. "If I had done so, yes, sir, I could have seen."
Thus, it is seen that means were at hand which, if employed, would have enabled the plaintiff to know whether the trap door was open or closed. A mere flip of the switch, which was only three or four inches from her hand, would have shown the opening. But, instead of turning on the switch and ascertaining whether there was something to step upon before she proceeded, she took a step in the dark. We have quoted her testimony wherein she stated that she took the step when she could not see the floor. Further, according to her testimony above quoted, her inability to see the floor made it impossible for her to tell whether the door was open *Page 22 or closed. Of course, her inability to see the floor was due to the fact that it wasn't there — the door was open.
I believe that, under the circumstances, it was the plaintiff's duty to assure herself that she had something to step upon before she proceeded. She was fully aware of the dangers present in this place. Instead of turning on the light she thoughtlessly took a step in the dark — she took a chance. Her omission to turn on a light when the switch was immediately at hand, in my opinion, was contributory negligence upon her part. Being in the minority, I omit the citation of supporting opinions. I believe that she is not entitled to recover. I, therefore, dissent to that portion of the opinion which affirms the circuit court's judgment against the defendant, Ex-Cel Pharmacy.
RAND, J., concurs in this dissent. *Page 23