127 Iowa 580 | Iowa | 1905
-Defendants James P. & T. S. Martin were the owners of a large building in the city of Sioux City, having four stories and a high basement. This building was erected in the year 1889, and was acquired by the Martins in the year 1901. At The time of their purchase defendant Prugh was in possession as lessee of the basement and first story of the building, which he used for a crockery store. The defendant Higman & Skinner Company were at that time in possession of the three upper stories as lessees, and they used the same for mercantile purposes. The Martins purchased subject to these leases. After acquiring title to the property, new leases were entered into between the Martins and defendants Prugh and the Higman & Skinner Company, covering the same floors which they had theretofore occupied. In each lease it was provided that the lessee should “ have the right in common with other tenants of said building, to the use of the freight elevator in said building.” There was also a covenant in each binding the lessee to keep the building, etc., in as good repair as it then was “ or might at any time be placed in by the lessor,” but the lessor made no covenant to repair. Thereafter the Higman & Skinner
On the morning of December 2, 1902, plaintiff, an employe of an independent dray line in Sioux City, was requested by the owner of some goods which were kept in storage for hire by the defendant Higman & Skinner Company to go to the building in question and remove the goods. An employe of the owner of the goods —1 a man by the name of Lockhart — accompanied him. They drove into the alley at the rear of the building, and backed the team up to the shed door, preparatory to loading the goods onto the w'agon. Lockhart then started to go into the building. The east door to the elevator shaft was open, and the bar had been raised. The shed was dark, as it always was in the early morning and on dark days, and the door to the elevator was pushed back, so that the sign thereon was not visible. Lockhart entered through this door, and immediately fell into the elevator well. Plaintiff, who was following but a short distance behind, but who did not know of the accident which had befallen his companion, also passed through the open door, into the elevator well, fell to the bottom of the shaft, and received the injuries of which he complains. He had never been in the building before, and did not know of its arrangement.
The negligence charged is the faulty construction of the elevator, failure to protect or guard the shaft, insufficient light in the covered shed or> platform to warn persons who might lawfully enter the east door into the elevator of present
With these rules and exceptions as to liability settled, we now go to the question as to whether or not there is an|y testimony which should have taken the case to the jury on the question of the negligence of either or of both of these defendants. The location and construction of the elevator shaft have already been sufficiently described. But it should further be stated that there was testimony tending to show that in the morning and- evening, and on dark days, the covered shed or platform to the east of the building so obscured the light that one entering the shed and approaching the elevator could not see the shaft or well when the elevator proper was above the first floor. There were no artificial lights near the elevator, nor were there any gates or bars, save the one bar already described. Nearly all freight elevators in Sioux City were supplied with automatic or semiautomatic gates, and the testimony tended to show that this is the usual and proper method of construction. The tenants had a common right to use this elevator; and it was frequently used by them and their employes, as well as by numerous draymen, who went there many times daily to get goods which were stored in the building. While it was not a passenger elevator, yet, as the upper floors were used largely for storage, it was known by the lessee, and b|y the lessor as well, that many people would come to the rear of the building, and use the elevator for the purpose of getting these goods. It was as much the duty of one tenant as the other to see that this elevator was properly protected, and to those whom they invited to come upon the premises they owed an affirmative duty. So, too, it was as much the duty of one tenant as the other to see that the elevator door out onto the rear platform was kept closed, and the bar placed across the opening. It seems, however, that no one, in fact, performed this' duty,
When plaintiff and his companion went to the building at the time they fell into the shaft they found the door open, and the elevator raised above the. first floor. Lockhart had been there the day before,. and had found the elevator in the same condition. He had used it, and, when he left, did not close the door or lower the bar. He did not see the door, as it had been pushed back into a partition which obscured it from sight. He did not see the bar, and consequently did not lower it. He had gone there the day before on business connected with the Higman & Skinner Company, and was justified, we think, in leaving the elevator as he found it. It was as much the duty of the Higman & Skinner Company, as of any other tenant, to see that this outside elevator door was closed, and the bar put in place. Either this was not done, or some one of the tenants had early in the morning opened the door, raised the bar, and used the elevator proper above the first floor, where it had been left by Lockhart the evening before. There was also testimony tending to show that this outside door was generally opened in the morning, and left open until noon, when it was closed for a short time, then opened again, and left open until closing time in the evening. This custom had existed for more than a year prior to the time plaintiff received his injuries. The building had not been closed on the evening of the day previous to the one on which plaintiff was injured, and Lockhart had left the elevator at the first floor when he finished his work there.
.3. Liability op owner or evidence. As to the landlord, James P. & T. S. Martin, there is no liability, unless it be shown that the premises as leased by them were in such a dangerous and unsafe condition as to constitute a nuisance, or that they reserved . . such control over the premises as that it was their duty to see that the same were kept in a reasonably safe condition for the uses intended. It will be observed that the accident did not happen by reason of any use of the elevator proper. The negligence charged is primarily the location and construction of the elevator well or shaft, without guards or gates, in such a place as that it could not be seen, knowing that persons must frequent the place and use the elevator in order to make the premises available to the lessees. The evidence, we think, shows such retention of control over the elevator by the landlord as that he was charged with the duty of keeping it in such condition — a reasonably safe condition - — ■ as to protect persons rightfully upon the premises from injury. The elevator was not leased outright to any of the tenants. They simply had the right to use it in common. This, as we think, shows that there was such reservation of control on the part of the landlords as that they owed a duty to any one who might rightfully be in proximity thereto. As this was a freight elevator, they were not bound to the highest degree of care, but were required to use ordinary and reasonable care in protecting and lighting this elevator well or shaft, so that persons rightfully upon the premises might not be injured thereby. Had they retained no control over the elevator, there would have been no liability, in the absence of a showing that at the time they leased the premises there was a nuisance, of which they had knowledge, and which it was their duty to abate. Nut
The eases are not harmonious on these propositions, but, in most of those holding to a contrary view, the premises were devoted to a public or semipublic purpose, of which the lessor had notice, and were not put to merely private uses, as was the building in this case. Most of the authorities may be harmonized when this distinction is kept in mind. If the premises are devoted to public or semipublic purposes, or if there be a dufy owing to the public in general, the landlord cannot absolve himself from liability by leasing them to a tenant, for he is under an affirmative duty, which he cannot so delegate to another as that failure of that other to repair makes him, and him alone, responsible for the injury. In the condition they were in when leased, the premises in the present case were manifestly not a public nuisance. They were not even a private nuisance as to the tenants, for they took them as they found them, and did not exact from their landlord a covenant to repair. They only became a private nuisance as to those who were invited upon the premises, and
Upon the two propositions we have discussed, regarding the liability of a landlord for such injuries as plaintiff in this
It follows that the trial court was in error in dismissing the case as to the Higman & Skinner Company and as to James P. & T. S. Martin.— Affirmed in part and reversed in part.