JOSEPH D. BONANOMI, Appellant, v. WILLIAM PURCELL et al.; JOSEPH D. BONANOMI v. WILLIAM PURCELL et al.; WILLIAM PURCELL, appellant.
SUPREME COURT OF MISSOURI
April 9, 1921
Division One
287 Mo. 436
2. CONTRIBUTORY NEGLIGENCE. Even where the defendant is guilty of acts of negligence which furnish the opportunity of plaintiff‘s injury, still if plaintiff is guilty of reckless acts, which are the immediate cause of his injury he cannot recover damages for it.
3. COMMERCIAL INTERCOURSE: Invitation to Enter Premises: Necessary Care. One merchant dealing with another has a right to go upon the premises of the latter by virtue оf the invitation implied from commercial intercourse, and the latter assumes to use ordinary care for the safety of his visitor. This degree of care is measured by the standard of the statutes as well as the common law. If some of the precautions prescribed by them are neglected, it is still incumbent upon the visitor to give ordinary care and attention to his own safety as affected by the conditions which lie openly before him, and this care is also measured by the law.
4. — : — : — : Case Adjudged. Defendant occupied a store at the corner of two streets, with a main entrance from one street at the first floor, and another entrance from the other street leading into the basement of the building. The plaintiff, a business man of large experience and familiar with such establishments, called upon defendant at his store to negotiate an arrangement for the removal of certain leather in rolls belonging to plaintiff‘s firm which was in this store. Defendant consented to the arrangement and invited the plaintiff to go down into the basement where the leather was kept. Plaintiff, defendant and an employee went together, descending by an elevator. At the basement floor they alighted, leaving the elevator standing in the shaft. There were no lights in either the elevator or the basement, and the place was
Appeal from St. Louis City Circuit Court. — Hon. Moses Hartmann, Judge.
REVERSED AND REMANDED.
Jones, Hocker, Sullivan & Angert and Ernest A. Green for plaintiff.
The trial court did not err in granting plaintiff a new trial and setting aside the involuntary nonsuit as to defendant William Purcell. The plaintiff was not guilty of contributory negligence as a matter of law. That question was for the jury. Grote v. Hussmann, 223 S. W. 131; Noack v. Williams, 175 Mich. 15; Barfoot v. White Star Line, 170 Mich. 349; Colorado Inv. Co. v. Reeves, 21 Colo. 435; Dawson v. Sloan, 17 Jones & S. (N. Y. Sup. Ct.) 304, 100 N. Y. 620; Wright v. Perry, 188 Mass. 268; Graney v. St. Louis, 141 Mo. 184; Stephens v. Eldorado Springs, 185 Mo. App. 469; Morris v. Rail-road, 184 Mo. App. 113; Chase v. Railway, 134 Mo. App. 657; Atlanta Terminal Co. v. Johnson, 15 Ga. App. 22; Cadneau v. Railroad, 161 Mass. 355; Jolliffe v. Miller, 126 App. Div. 763, 111 N. Y. Supp. 406, 196 N. Y. 504; Wilcox v. Rochester, 190 N. Y. 137; Shaninger Co. v. Mann, 219 Ill. 242; Loan & Trust Co. v. Jester, 180 Ind. 257; Conway v. Trust Co., 47 Mont. 269.
Thomas L. Anderson for defendant Purcell.
(1) Plaintiff was guilty of contributory negligence as a matter of law. Marshall v. United Rys. Co., 209 S. W. 931; Cluett v. Union Electric L. & P. Co., 205 S. W. 73; State ex rel. v. Ellison, 271 Mo. 463; Nolan v. Shickle, 69 Mo. 336; Powell v. Railway, 76 Mo. 83; 29 Cyc. 508; 2 Words and Phrases, 1545; Steger v. Immen, 122 N. W. 104, 24 L. R. A. (N. S.) 247; Ballou v. Collomore, 160 Mass. 246. (2) Where a person having a choice of two ways, one of which is perfectly safe and the other of which is subject to risk and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover. Behre v. Hempe, 191 S. W. 1038; Bailey on Personal Injuries, secs. 1121, 1123; Shaw v. Goldman, 116 Mo. App. 332; Rogers v. Packing Co., 185 Mo. App. 109; 3 Labatt‘s Master and Servant, sec. 1249, p. 3432.
Buder & Buder, E. E. Schowengerdt and A. W. Wenger for defendant Gregg.
(1) No appeal lies from an order overruling motion for new trial as such.
“Paragraph 22. Lights. A light shall be provided in all passenger and freight elevators.
“Paragraph 30. Every open hatchway in which a freight elevator is installed shall hereafter be securely protected on all sides to a height of at least six feet—said enclosure may be solid or constructed of two and one-half inch mesh wire of at least number eleven gauge, or of vertical or horizontal strips. If vertical strips are used, the open space between strips shall not exceed two and one-half inches. The entrance to the shaft shall be provided with a semiautomatic gate аt least five feet in height, properly fitted with a device to prevent the gate from being opened until the platform, of the car arrives at the floor landing, and which shall cause the gate to close automatically as the car leaves the floor landing.”
The petition charged that defendants had violated all the provisions of both city ordinances and that from
Each of the separate answers of the defendants consisted of a general denial and plea of contributory negligence.
After hearing the evidence the court, upon motion of each of the defendants, gave instructions to find for each of them, whereupon the plaintiff took a nonsuit with leave to move to set the same aside and in due time filed such motion, which was sustained as to the defendant Purcell and overruled as to Gregg.
Purcell takes this appeal from thе order of the trial court sustaining, as against him, the motion to set aside the nonsuit, and granting a new trial.
Plaintiff appeals from the order overruling his similar motion as to Gregg.
It will be seen from the foregoing statement that the only question for our determination in Purcell‘s appeal is whether or not the evidence against him was sufficient to make a case for the jury.
Respondent Gregg has filed his motion to dismiss plaintiff‘s appeal on the ground that no final judgment was entered upon the nonsuit suffered by plaintiff as against Gregg, and that the order overruling the motion to set aside the nonsuit as against him is not a judgment or order from which an appeal lies.
These appeals have been consolidated in this court and tried as one case, and will be so treated in this opinion.
The appellant Purcell was a harness manufacturer in St. Louis, doing business in a building at the southeast corner of Main and Market Streets. The plaintiff was a credit man for the Armour Leather Company, who sold him leather for use in his industry. Some question arose as to his ability to pay for leather on hand
The elevator shaft in the basement was enclosed on three sides. On the side toward the room it had apparently been enclosed by double swinging doors, one of which was gone, leaving an open space of half the width of the shaft, say about two feet.
The leather was in the basement. After the arrangement for removing it had been made in the office, Mr. Purcell said, “I will take you down and show you where it is.” He said “come this way” and the two men and Mr. Purcell‘s man Fred Ross got in the car and went down. There was no gаte or automatic or other device to keep the shaft closed until the car should arrive at the floor landing. Either Mr. Purcell or his man operated the elevator. There was no light in it. When they arrived at the basement floor the two other gentlemen got out and the plaintiff followed them. The basement was very dark, there was no light in it. They left the elevator at the basement floor and level with it. The man opened the doors to admit light. Mr. Purcell showed plaintiff the Armour leather and its markings, and left plaintiff with Fred and a helper whom he told to assist in moving it as plaintiff checked it out. He lеft in a few minutes. Plaintiff went to the open door of the basement, where he could see the marks on the leather as it was brought to him. There were ten sides in each roll,
The plaintiff, having substantially described these surroundings, proceeded to describe the immediate incidents of the accident, as follows:
“MR. ANDERSON: A little louder; I can‘t hear you.
“THE WITNESS: I said when he had taken all the rolls of leather out of the basement and I had come back in the basement and asked him if we were through, if he had taken all the leather, he says, ‘Yes;’ I says, ‘Let‘s go upstairs,’ and I started over toward the elevator.
“MR. ANDERSON: Q. Who were you talking to? A. Fred, his man. I says, ‘Let‘s go; if you are through we will go upstairs.’ So I started to go up the same way we came down and I started over towards what I thought was an elevator, and it looked to me just like the open door of the elevator, and I stepped in, and as I stepped in I fell down to the bottоm of the shaft. There were no lights there.
“MR. GREEN: Q. Was there any guard or gate or anything there over that elevator shaft at that time? A. No, sir, not a thing.
“Q. Did you know the elevator was not there? A. No, sir; I did not.
“Q. Did you think it was there? A. I know it was not.
“Q. Did it appear as though it was there? A. It appeared as if it was there.
“Q. State to the jury how light it was down there at that time? A. Well, there was no lights down there; it wasn‘t light at all. The elevator being over away from the street, from any of the windows, if there were any windows there, it being dark you could hardly distinguish the shaft.
On cross-examination the plaintiff testified:
“Q. So you could have walked that fifty feet and gone right into that doorway on the first floor of the building, couldn‘t you?” Here followed an objection and much argument.
The objection being overruled, the examination proceeded:
“Q. There was this perfectly good granitoid sidewalk; there wasn‘t anything the matter with the sidewalk, was there? A. Not that I know of.
“Q. You didn‘t see anything the matter with it at all? A. No.
“Q. Perfectly good solid granitoid sidewalk up to that doorway, wasn‘t there? A. As far as I know it was.
“Q. And you had been in that very doorway, the entrance to the building, the entrance to Mr. Purcell‘s office only an hour and a half or two hours before; that is true, isn‘t it? A. Yes, I had.
“Q. And you preferred аnd did go back into the basement, which you say was dark and unlighted; is that right? You still want to say that? A. I want to add this: That way back in the basement there was a gas jet, which the men lit in order to find the leather in the back part of the basement.
“Q. Way back in the back part of the basement. That was how far from where this elevator was? A. About twenty feet, I should say, as much as I can remember.
“Q. You wouldn‘t say it was one hundred and twenty? A. No; I can‘t say that.
“Q. Now, you say they lit a gas jet way back there; then they had some light back in the back part where it was dark, didn‘t they? A. In order to illuminate the basement; yes, sir.
“Q. They did have a light down there, then? A. At that time they did.
“Q. Then it had lapsed into total darkness; is that it? A. Well, you may call it such if you wish.
“Q. I don‘t wish to call it anything. All I want to find out is what you swear under oath was the condition there. A. I swore it was dark, and I still maintain it was dark.
“Q. That is the reason you say they had a light back there at one time. They turned the light out because there was no necessity for it; is that it? A. No; because they were through picking out the leather.
“Q. And they just turned the light out then because they didn‘t need any more light down there? A. Yes, sir.
“Q. Now, then, you left a good—perfect good sidewalk, out in the sunlight on the 23rd day of April, fifty feet from the doorway going into this gentleman‘s office, and this, with your full knowledge—you knew that, you say—to go back down into this basement, in the doorway leading into the basement and groped your way to where the elevator was. How far was the elevator from the door? A. Why, I would say, about twenty feet, I think.
“Q. About twenty feet. You had just come down out of there; you knew it didn‘t you? A. Well, I didn‘t measure the distance.
“Q. Did you grope around there to find the place where this elevator was in this total darkness? A. No, sir.
“Q. Or did you just walk right up to it; know where it was, аnd walk in there? A. You could see the shaft there. There was the dim outline of a shaft.
“Q. Then you knew that that elevator—where the elevator was; you could see this dim outline of the shaft? A. You could see the dim outline; yes, sir.
“Q. And you think it was about twenty feet from the door? A. I think so.
“Q. Because it was so dark? A. Yes, sir.
“Q. And you could see the shaft; you saw the dim outline of it, and you knew it was an elevator shaft? A. Yes, sir.
“Q. And you were looking, were you, and using your eyes as you walked up to this shaft? A. I certainly was.
. . . . . . . .
“Q. Now, when you wеnt to where the elevator was, didn‘t you say to Fred, ‘Come on, let‘s go?’ A. Words to that effect; yes, sir.
“Q. Well, what did you mean, go where? A. Go up in the office.
“Q. So you said to him, ‘Come on, let‘s go up there?’ A. Yes, sir.
“Q. He was there how far from you at that time? A. Well, he was right near me; two or three feet, I should say.
“Q. Within two or three feet? A. Yes, sir.
“Q. Well, he operated the elevator coming down, didn‘t he? A. Either he or Mr. Purcell.”
I. The plaintiff‘s appeal was taken, not from a final judgment of the trial court upon involuntary nonsuit suffered by plaintiff because of the instruction of the court directing the jury to return a verdict for defendant Gregg. The order was limited in its terms to “an appeal to the Supreme Court of the State of Missouri from the order overruling his motion for a new trial and to set aside the involuntary nonsuit as to defendant C. D. Gregg.” The right of appeal is purely statutory, and does not apply to such an order. [
II. It is admitted for all the purposes of this appeal that no light was provided in this elevator, and that the hatchway through which it passed this basement floor was not guarded or surrounded by any fence or gate whatever at the usual point of entrance and exit when this accident occurred, nor was there any automatic or other device which closed the entrance and exit to and from the shaft when the car was not at this floor landing. A valid ordinance of the city required all these measures of precaution and thеir absence contributed to the injury of plaintiff, which would not, in all probability, have happened had they been present. In short, the petition properly pleaded and the evidence tended to prove that the appealing defendant was guilty of negligence directly contributing to plaintiff‘s injury.
On the other hand the appellant Purcell contends that the plaintiff‘s own testimony shows that he was himself guilty of negligence directly contributing to his own injury, and that he cannot therefore recover from another damages which he helped to inflict upon himself. His contributory negligencе as a matter of law is the real question before us.
Contributory negligence, like all other negligence, is usually a question for the jury, but there is a degree of care which the law exacts as a condition to the recovery of pecuniary damages. Recklessness of one‘s own safety may seem to be his own affair until he attempts to shift the burden of its consequences from his own shoulders to the shoulders of another. It then becomes the affair of both and, the facts being admitted, the law must adjust it between them.
In this case the plaintiff was upon the premises of the appellаnt by virtue of the invitation implied from
Plaintiff was, aсcording to his own statement, a business man of long experience, and we must assume that he was familiar with the ordinary appliances from the top to the bottom of structures in which the heavy goods produced and sold by his employers were marketed. In this case his story impresses us with a familiarity amounting to heedlessness.
He had transacted the business which was to result in the removal of the leather from the building, in the office on the first floor, which he reached by going into the main entrance at the corner of Main and Market streets. When he had finished, Mr. Purcell proposed to go to the basement and show him the leather. They stepped into the freight elevator, taking with them Mr. Fred Ross, the man who, with a helper, was to handle the leather. When they reached the landing in the basement, Ross and Purcell got out and he followed them. It was dark, and they opened the door to give more light, but it still remained dark at the elevator. Mr. Purcell showed them the leather. Plaintiff went outside the door on to the sidewalk where it was light to check the weight of the packages as they came out to be piled on the walk against the side of the building preparatory to hauling them to the Armоur Warehouse. There were forty-two of the rolls, each one as big around as a barrel. They finished handling them in an hour or an hour and a half, and instead of walking fifty feet west on the granitoid sidewalk to the main entrance where he had first entered the office, he went back into the dark building where he
The trouble which was the immediate cause of this accident seems to have been that one of the double swinging doors that closed the entrance to the elevator on this floor was broken. This was evident, and the plaintiff so stated. His carelessness in entering the dark shaft without any attempt to ascertain or reason to beliеve that the elevator was there, was evidently the cause of the accident. The absence of the light in the elevator had nothing to do with it, for the “elevator,” in the sense in which the word is used in that provision of the ordinance, was not there.
We can fully appreciate the inexcusable carelessness of one who leaves unguarded an open hatchway like this, in the floor of a dark basement in constant use for the storage and handling of heavy goods by both employers and customers. In this case, to be sure, the space through which the victim must pass, or be thrust, to his fall, was only two feet wide. We need not charge our imagination with the task of suggesting possible injury from such a condition. The freaks of accident confound all foresight, and we guard against them by those conventional methods generally recognized as preventives, the most universal of which is to “look where we step.”
On the other hand, what shall we say of the character of the carelessness of a man of intelligence and wide experience who walks up to such an aperture as we have just described, and, without any reason to believe that there is an elеvator platform inside except that in the course of the constant business activities of such a place he had been
The principle which bars a recovery for an injury arising from the negligence of both plaintiff and defendant was stated by the St. Louis Court of Appeals in Wheeler v. Wall, 157 Mo. App. 38, as follows:
“In an action for personal injuries, where it appears the injuries received might have been averted and the consequences of defendant‘s negligence avoided by the exercise of ordinary care on the part of the injured person, he is not entitled to recover, the case being оne of mutual and concurring negligence, with respect to which the law will neither cast all of the consequences on the defendant nor attempt to apportion them between the parties; and when it appears that though defendant was negligent, the injury would not have occurred but for the negligence of plaintiff as well, contributing proximately thereto, will not be allowed.”
In Marshall v. United Rys. Company, 184 S. W. l. c. 165, REYNOLDS, P. J., of the St. Louis Court of Appeals in a dissenting opinion, said of one who was injured by jumping into an elevator shaft thinking the elevator was there: “Boy that he was, then about fifteen years old, he must have knоwn that it was not safe to jump into a dark place without knowing the depth or where he was to land. Nevertheless he appears to have done that very thing, that is, rushed into an unknown, dark opening, without the slightest attempt to ascertain the conditions. In my judgment his carelessness, which produced his injury, was the proximate cause of that injury and should so have been declared
“After a careful examination of the record in this case, it seems to us that, upon the testimony of the plaintiff himself, the conclusion is inescapable that his own contributory negligence was the proximate cause of the injuries sustained by him when, without invitation or suggestion from any one, he yielded to the impulse to jump into the open shaft of the elevator. This is the view reached by REYNOLDS, P. J., in a separate opinion (184 S. W. l. c. 164, 165), which we think announces the correct principles of law applicable on the undisputed facts in this case.”
The case of Grote v. Hussmann, 223 S. W. 129, decided by the St. Louis Court of Appeals, draws plainly the line of distinction between those cases in which the injured party assumes for himself the risk of determining the position of the elevator and those in which the safety of the conditions in that respect is represented to him by the defendant. The case turned upon that single point. The court, referring to the plaintiff, said: “When he started to the elevator shaft, he saw defendant‘s employee standing in front of this elevator shaft, with the doоr open and his hand upon the door, a silent invitation to enter. This portion of the building was dark; the lights there were not burning. Defendant‘s witness, Heyer, so testified; and this same witness admits in his testimony that the door was open, and that he was standing in exactly the same position he would stand when he was ready to take passengers up on this elevator. This witness says that he had his back turned to defendant at the time he entered the shaft. If the jury believed this theory, they could still have found defendant guilty of negligence, for it cannot be said that defendant or his employee could
In this case the plaintiff took the initiative; in going from the door to the elevator he saw Fred Ross and remarked as he went on, “Come on, let‘s go“, and, without giving anybody an opportunity to stop him, оr any indication that he intended to go into the shaft whether the elevator was there or not, he entered without stopping or looking, and of course fell to the bottom. The difference in the two cases is that in the Grote case the defendant assumed or negligently appeared to assume to be in control of the elevator, and to invite the plaintiff to enter by acts usually implying such invitation. In this case the plaintiff, according to his own statement, took charge of the situation and gave no one any opportunity to interfere. In going down, which was his only previous trip in that elevator, it was operated, he says, by Purcell or Ross. He does not recall which. They invited him in, and when they reached the basement landing they stopped the elevator at the right place and invited him out. In his attempt to go up he himself was captain of the enterprise until he stepped off into the dark, and the enterprise, so far as its legal aspects are concerned, was fully accomplished.
We think his own act was the direct and proximate cause of his injury. The acts with which defendant is charged went no further than to give him the opportunity.
What we have said applies equally to both these appeals. In case of the appeal of defendant Purcell from the order of the court setting aside the nonsuit against him, said order is reversed. The appeal of plaintiff from the order refusing to set aside the nonsuit as to Gregg is dismissed.
The cause is remanded to the Circuit Court of the City of St. Louis for such further proceedings upon the judg-
PER CURIAM:—The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All of the judges concur.
BROWN, C.