Judgment of the Court
J.-The appellant's husband met his death on the evening of 20th December, 1924, at or about 11.30 o'clock, by falling down the shaft of the private service elevator in the MacDonald Hotel at the city of Edmonton, a distance of about 30 feet. He was a barrister, residing and practising at Edmonton, and, that evening, had attended a banquet held on the mezzanine floor of the hotel by the Alberta Bar Association, of which he was a member.
The respondent company, the proprietor, carrying on the business of the hotel, had provided and served the banquet for the Bar Association. The service of the dinner had concluded before 10 o'clock, and some speeches followed, but after these were finished, and sometime previously to the accident, the banquet had broken up, d the guests had left the mezzanine floor. Shortly before 11.30 o'clock, the deceased had visited a room on the 2nd floor, which was occupied by a guest of the hotel, and where some friends of the guest were, but he remained there only a few minutes; he enquired of a witness whether there were a lavatory in the room, and, being informed that there was none, said that
There were in fact two marked lavatories, one at each end of this corridor. He was next seen, after a short interval, in the corridor contiguous to the banquet-room which leads from the main stairway and passenger elevators. This corridor runs east -and west. The deceased was seen at the east end of the corridor, the main stairway and passenger lifts being situated to the westward. Adjoining the banquet-room, the entrances to which from the main corridor are on the north side of the latter, there is a narrow corridor or passage leading from the main corridor to the service elevator, a distance of about 15 feet, and from the east side of this passage a stairway leads down to a cloak room in connection with the main dining room on the floor below. The stairway extends only between the main or ground floor and the mezzanine floor, and is used for service purposes exclusively. The passage from the main corridor to the private service elevator is of a width at the entrance of about 3 feet. There is no door, but, within the enitrance, the passage has a uniform width of about 42, feet. This space was in part occupied by a buffet or sideboard, used for service purposes, which stood in the middle of the passage against the wall on its western side, and was of the dimensions of about 7 feet by 2- feet, so that there would be, opposite to the sideboard, a space of not more than 21 feet between the sideboard and the rail which guards the well of the private stairway. It is said by the coroner, who visited the place immediately after the accident, that
The passage was used by the waiters for service on the mezzanine floor, and, during the dinner, had been occupied by the attendants who served the wine. It provided no accommodation for the use of guests.
At the time when the deceased was last seen in the mez- G. zanine corridor he crossed that corridor and went into this private service passage, and to the door of the elevator, which is at the end of it, where he stood rattling the door.
A few minutes later he was found in an unconscious and dying condition on the concrete at the bottom of the shaft.
The door of the elevator was closed when the deceased went to it, but there is evidence that the lock was defective, and apt to be released because of insufficient tension.
When the deceased fell the lift itself was at one of the floors above, and in its descent the attendant found the mezzanine door open, and closed it, and, when he reached the basement, he discovered the deceased lying in the pit.
The trial judge describes the lift in his charge to the jury. He says:
It should be added however that, as the lift was not used by passengers, and was operated only by the private service waiter, the push buttons and dial had not been connected with the mechanism, and did not serve their purposes.
Immediately to the eastward of the passage leading to this private elevator, and beyond the stairway, was the pantry or serving room for the mezzanine floor, which opened off the main mezzanine corridor, so that there was, adjoining the private dining rooms, which on this occasion had been thrown into one large banquet-room a considerable space or block, comprising the private passage, stairway, elevators and pantry, devoted exclusively to service purposes.
The action was brought by the widow and administratrix of the deceased on behalf of herself and her children, of whom there were four, to recover compensation under the statute, and it resulted in a general verdict for the plaintiff, upon which judgment was entered for $40,000 dam- G. TI ages. The defendant company appealed and the Appellate Division allowed the appeal and dismissed the action. Nw bj. The Chief Justice, who pronounced the judgment on behalf of the court, after reviewing the evidence, referred to the cases of Walker v. Midland Railway Co. (1); Mersey Docks and Harbour Board v. Proctor (2), and Connor v. Cornell (3), and particularly to the speech of Lord Selborne in the first named case, where it is said, at p. 490: And the learned Chief Justice concluded, having regard to these authorities, that it was established by the undisputed facts, that at the time and place of the accident the deceased was not entitled to be treated as an invitee, and that therefore there was no failure of duty to him on the part of the defendant company.
I have considered the evidence very carefully and I do not think that the judgment of the Appellate Division should be disturbed. The material facts in proof have been stated. Beyond these and their fair implications, everything is left to conjecture. The court must of course be careful to distinguish between the separate functions of judge and jury and to avoid the disposition of a case upon inferences inconsistent with findings which there is evidence to sustain. But here the case does not depend upon contradicted evidence, and I find no support for the finding, which, in view of the charge of the learned trial judge, must necessarily be implied in the general verdict, that the deceased was invited, or was justified to believe that he was invited, by the respondent to enter or to use the private passage, or to meddle with the door of the service elevator. There can be no doubt that the hotel management did not intend or expect that he should or would go into the private service quarters. It is suggested that he was still looking for a lavatory, but there was no lavatory in the passage, and no reason is disclosed why he should expect to find one there, and of course he had no permission to search the recesses of the hotel. The lavatories were in the basement, as he knew, or would have learned by inquiry. If thle deceased were looking for an exit, why did he leave the passenger lift, or main stairway, by which he had come up, and by which he had descended from the second floor to the mezzanine, and which would have taken or led him direct to the ground floor? Evidently he was not looking for an elevator. It is said however that, having found this one, he shook the door in order to summon an attendant. That is a surmise which has, perhaps, some suggestion of probability, but certainly there was no holding out of the place to be used by visitors in that manner or for that purpose. I see no evidence to indicate that, by anything for which the hotel is responsible, the deceased was misled into a belief that he was invited to use the private passage; and, having gone there, where he had no right to be, he was not entitled to rely, if he did rely, upon the adequacy of the lock of the elevator door to withstand the shock which he gave it.
If, on the other hand, the view were taken that the defendant company was negligent in the execution of its duty to the deceased, the question would remain as to whether there be in proof a state of facts from which the jury might infer that the defendant's negligence was the, cause of the accident, and the considerations suggested by Wakelin v. The London and South Western Ry. Co. (1), would arise; but, having regard to the conclusions which I have expressed, it is unnecessary to consider this question. I would dismiss the appeal.
Appeal dismissed with costs.