GEORGE C. KENNEDY v. C. J. PHILLIPS, Appellant
Division Two
March 24, 1928
5 S. W. (2d) 33
Finding that the title to real estate in the constitutional sense (
Jones, Hocker, Sullivan & Angert for appellant.
HENWOOD, C.—Kennedy sued Phillips, in the Circuit Court of the City of St. Louis, for damages arising out of personal injuries suffered by him on September 22, 1922, when he fell down an unguarded elevator shaft in Phillips’ store building. The trial re-
The questions presented for our review do not involve the pleadings and, although the motion for a new trial asserts that the verdict is excessive, no contention is made here as to the extent of the injuries complained of, nor as to the amount of damages awarded therefor.
Three items of negligence are alleged in the petition, (1) the unguarded elevator shaft, (2) insufficient light, and (3) failure to warn as to the danger. The answer is a general denial, coupled with a plea of contributory negligence. The reply is a general denial of the affirmative allegations of the answer.
A careful examination of the record discloses that counsel for respondent have, with a few exceptions, fully summarized the evidence on both sides, in their brief. With some alterations and additions, we adopt it as a fair statement of the material facts. So amended, the statement is as follows:
“At the time in question, the defendant owned and occupied a three-story brick building in the city of St. Louis, with a frontage of sixty-seven feet on Seventh Street and a depth of 123 feet on Poplar Street. The building was divided into three sections of three stories each, but we are concerned with the middle section only in this case. The second floor of this middle section was a room, about twenty feet wide and one hundred and twenty feet long, running lengthwise in an east-and-west direction. The west end thereof was the front, and faced on Seventh Street, while the east end thereof abutted an alley at the rear of the building. There was a stairway that led from the first floor to this second-floor room. Near the southeast corner of this room was the elevator shaft into which plaintiff fell. It was located at a distance variously estimated as six, ten or fourteen feet, from the east wall of the building, and was against the south wall. This shaft was about six feet square and through it ran the hydraulic elevator, which extended from the basement of the building to the third floor. The east and west sides of this elevator shaft on the second floor were said by defendant to be boarded up with unpainted boards and in their natural color, except as darkened by time. The east wall was painted gray, and last painted several years before. The south side of the elevator shaft was against the south wall of the room. The north side of the shaft was the entrance to the elevator, and it was entirely open except that it was provided with a gate. There was evidence that this gate was a slat-covered framework, about five feet high, running up and down vertically in grooves at the side of the shaft. When down, or closed, the lower edge of the gate was about ten inches above the floor level. When normally raised and open, its lower edge was just about high enough
“The north and south sides of this room, each 120 feet long, had no windows whatever therein. But, at the east and west ends of the room, there were windows, according to defendant‘s evidence. Although there was evidence that there were several electric light bulbs there for illumination on the second floor, it is not disputed that none of them were lighted or burning at the time plaintiff was injured, and that whatever illumination there was on the second floor came by natural light from the windows in the east and west walls of the room. The illumination in this room at the time of the injury was a disputed question of fact at the trial, plaintiff‘s evidence showing that only a faint light came in and it was pretty dark or dimly lighted, although some objects could be seen; while there was evidence on behalf of defendant to the effect that it was much lighter. Evidence on plaintiff‘s behalf, as to the weather, showed that it was a dark, clammy morning, and by the report of the United States Weather Bureau it was shown that a light fog prevailed on that morning from about five A. M. until about nine A. M., during which time plaintiff fell and was injured.
“In this building the defendant owned and conducted a general store, wherein he had on display and for sale to the general public every imaginable description of merchandise. It appears that defendant had an arrangement with about fourteen railroads in St.
“In addition to the above testimony, affecting the amount of natural light that could come in from the windows, there was evidence that a railroad ran at the side of the building along Poplar Street, and defendant admitted that his windows were not washed oftener than about every sixty days.
“Defendant‘s store had an ordinary glass front, like any other store, an average store-front with double doors, and the general public were invited to come there and look over his stock and purchase, if they desired, like any other store. Under defendant‘s contract with the railroads, however, he was not permitted to sell the salvage railroad goods to railroad employees, subject, however, to the express exception, stated in the contract, that a railroad employee could purchase, if consent of the proper railroad official was obtained. Otherwise, defendant could and did sell to anyone, and did a general retail business, and the evidence showed that no particular alertness was maintained by defendant‘s salesman to prevent selling to railroad employees.
“Defendant testified that under his agreement with the Missouri Pacific Railroad, that railroad kept a man in his store all the time, opening boxes, checking and examining freight, and listing it up before turning it over to defendant, and that one Matheny (further referred to hereinafter) was the railroad‘s delivery clerk who delivered goods to defendant and was in and out defendant‘s store all
“At the time of plaintiff‘s injury, and also on the day preceding the injury, the defendant was not in the city of St. Louis, but was in Cleveland, Ohio. During the absence of defendant from the store, a salesman named Cloos was in charge thereof. Cloos was provided with a key for opening up the store in the morning, and was always the first one there and always opened it for business.
“On the opposite side of Seventh Street from defendant‘s store, there was a building in the middle of the block, wherein the Missouri Pacific Railroad maintained various offices, having therein numerous railroad employees. On a lower floor of this building was the office of the Missouri Pacific Railroad‘s special agent, who had charge of that railroad‘s private police in St. Louis. Plaintiff was employed by the railroad in that office as a clerk. The special agent in charge was J. H. Baer, and his assistant was defendant‘s witness Fitzgerald. When plaintiff came to work that morning, about 7:30, Baer and Fitzgerald were in the office. A few minutes later, Captain Doyle, then a police lieutenant of St. Louis, came to the office. The occasion for him visiting the office of the Missouri Pacific‘s special agent that morning was as follows: Some time prior to that date, an employee of another railroad had communicated with Fitzgerald and told him that Captain Doyle wanted to buy a kitchen sink, from salvage of one of the railroads, and Fitzgerald had communicated this fact to Matheny, so that when such a sink was delivered to defendant as salvage, Captain Doyle would be notified thereof in order that he might purchase it. It appears that on the day prior to the injury, Matheny had informed Fitzgerald that he had delivered such a sink as Doyle wanted to defendant, and this information had been forwarded to Captain Doyle, and in response thereto, Doyle called at Fitzgerald‘s office on the morning of the injury. His purpose was to purchase the sink.
“Defendant‘s salesman, Cloos, in charge of defendant‘s place of business, came to work that morning at about 7:30 o‘clock, unlocked the front entrance door, and stood in front of the building on Seventh Street. Shortly after Cloos arrived, Matheny came to work and was talking to Cloos. After they were there a few minutes, Fitzgerald came across the street from the railroad office and told Matheny in Cloos‘s presence about Captain Doyle‘s visit there that morning and that he wanted to buy a sink. Fitzgerald and Matheny then, according to their testimony as defendant‘s witnesses, went into defendant‘s store and up the stairs to the second floor to find the sink which Matheny had reported. They looked about on the
“Cloos apparently remained outside, and Matheny, plaintiff, Fitzgerald and Doyle then went in the open front entrance of defendant‘s store, then up the stairs to the second floor, then to the place where the sink was. Matheny found the sink, partially crated, where Cloos had directed them, but there was a crated bathtub standing on end next to it and up against it, which obscured the view, and goods piled about it, so that they could not see the sink without moving the tub. Thereupon they started to move the bathtub enough so that the sink could be seen. As they were doing this and letting the bathtub down, plaintiff took hold of the top end of it to assist in letting it down to the floor, and as plaintiff was letting it down he took a step backward, and thereby stepped into the open elevator shaft there and fell about twenty-five feet into the basement, sustaining the serious injuries sued for. It appears that the sink and bathtub were just a few feet north of the entrance to the elevator, but neither Captain Doyle nor plaintiff noticed the elevator shaft until plaintiff fell into it, although Captain Doyle was himself only about three feet away from it; the light was such that he could not see it. Plaintiff had never been up there before and did not know and was not warned that any elevator shaft was there. There was no railing or guard of any kind across the front of the shaft to prevent him falling, and he touched nothing there whatever at the time he fell. Plaintiff testified that he had not been up there then more than about three minutes and not long enough to have an opportunity to observe in detail the conditions existing thereabout.
“After plaintiff fell, the other three men ran down the stairway and to the basement and got plaintiff out of the pit. None of them, according to their testimony, examined the elevator shaft or gate before running down to the basement. Salesman Cloos testified that he was out in front of the store at the time and heard a commotion inside and went in and saw that plaintiff had fallen into the basement; and Cloos went down to the basement, and then ran from the basement up the stairs to the second floor, and there, while alone, observed the conditions of the gate and elevator where plaintiff had just fallen. As to the conditions that he then found there, Cloos testified that the elevator and the lower edge of the elevator gate were three or four feet higher than the level of the second-floor, and that the elevator gate was raised up with its lower edge at a point about even with the floor of the elevator without anything to support it in that position. In other words, that both the floor of the elevator and the lower edge of the elevator gate, were about
“Defendant testified that he returned to St. Louis on the morning of the accident, and arrived at his store at about ten o‘clock A. M. and was informed that the accident had occurred; that he thereupon telephoned to the city inspection office and requested an inspector to come and inspect his elevator, and that an inspector did come on the same day and inspected it. He testified that even though the elevator should creep (that is, move very slowly), nevertheless that it should and would release the gate and cause it to close, and that he knew this because on that same day, after the accident, the second-floor gate was tested in that respect, with the elevator creeping. He also testified that no repairs were made after the accident, and that no repairs had ever been made from that time up until the time of trial.
“There was no direct evidence as to who last operated the elevator on the previous day or where it was left when the store was closed. Cloos testified that he had operated the elevator on the previous day and operated it every day, but that he did not know who operated it last on the previous day, nor where it was left at the close of business. Cloos testified, however, that he had placed the sink and various other articles of merchandise in their position near the elevator shaft on the previous day. As to the elevator creeping, Cloos testified that he had never noticed it creep before that morning, but he did notice it creep that morning after the accident. He admitted, on cross-examination, that sometimes the pressure of the water would move it a little ways and that if the elevator was stopped and the water not entirely turned off, so that the power leaked a little bit, then it would creep; that the power could be turned off at night and prevent any creeping; that in freezing weather the power was always turned off at night; and that it was not turned off the night preceding plaintiff‘s injury.
“A city elevator inspector testified, on behalf of defendant, that he inspected the elevator on the day following the accident, and not on the day of the accident, and that he found nothing wrong with the elevator or the gate, and so reported. The evidence also showed that the elevator was last inspected prior to the injury on
“During the above mentioned inspection made after the accident, defendant rode on the elevator and accompanied the inspector. Neither defendant nor the inspector offered any explanation as to how the injury occurred.
“Defendant further testified that, at the time in question, he had in his employ a maintenance man, named Emil Meyer, to look after his elevators, gates and doors. Meyer resigned his position at the store in the summer of 1924, to go on an extensive automobile trip, and was in Colorado when defendant last heard from him. He did not testify at the trial and his deposition was not taken.”
I. Learned counsel dispute defendant‘s liability on the facts of this case, on four grounds: first, because plaintiff entered defendant‘s store as a mere licensee and not as an invitee; second, because, conceding that plaintiff entered the store as an invitee, he exceeded the limits of his invitation and had thereby become a licensee at the time of his injury; third, because the evidence fails to show any negligence on the part of the defendant in connection with the unguarded elevator shaft; fourth, because plaintiff was guilty of contributory negligence as a matter of law. We will discuss these questions in the order named.
(a) While much has been written on the general subject of the liability of storekeepers and other proprietors for injuries received by licensees and invitees, the well-established rule in this and other jurisdictions is very plainly stated and very clearly explained by Judge LAMM in the leading case of Glaser v. Rothschild, 221 Mo. 180, 184, 120 S. W. 1. The rule is stated and explained by Judge LAMM, as follows:
“In such cases as this the root of the thing, the deciding question, is: Do the facts raise a duty, a breach of which is shown? [Pierce v. Whitcomb, 48 Vt. 127; Sweeny v. Old Colony R. R., 10 Allen, 368.] There are such sure and clear words in the law in that behalf that all doubts are resolved and one who runs may read. The general rule is that the owner or occupier of premises lies under no duty to protect those from injury who go upon the premises as volunteers or merely with his express or tacit permission from motives of curiosity or private convenience in no way connected with business or other relations with the owner or occupier. [Hargreaves v. Deacon, 25 Mich. 1; Benson v. Baltimore Traction Co., 77 Md. 535; Railroad v. Slaughter, 167 Ind. 330, and cases cited; see also arguendo, O‘Brien v. Steel Co., 100 Mo. 182, and Glaser v. Rothschild, 106 Mo. App. 418; Kelly v. Benas, 217 Mo. 1.]
“A bare licensee (barring wantonness or some form of intentional wrong or active negligence by the owner or occupier) takes the
“But the situation with reference to liability radically changes when the owner invites the use of his premises for purposes connected with his own benefit, pleasure and convenience. That change calls into play other rules of law in order to do full and refined justice. The rule applicable to that change is that a licensee who goes upon the premises of another by that other‘s invitation and for that other‘s purposes is no longer a bare licensee. He becomes an invitee and the duty to take ordinary care to prevent his injury is at once raised and for the breach of that duty an action lies. [See authorities, supra; Pauckner v. Wakem, 231 Ill. 276; and a line of cases cited by GILLET, J., in the Slaughter case, supra; also, Nephler v. Woodward, 200 Mo. 179, arguendo.]
“The word ‘invitation’ used in the rule covers and includes in it enticement, allurement and inducement if the case in judgment holds such features. Also, the invitation may be implied by a dedication, or it may arise from known customary use. [Drennan v. Grady, 167 Mass. 415; and cases, supra.] So, too, it is held in all the cases that the invitation may be implied by any state of facts upon which it naturally and reasonably arises.” (Italics ours.)
It must be conceded that Doyle was an invitee in defendant‘s store. While he knew that the particular kitchen sink he was invited to look at was sold, it is perfectly clear that he was in the market for a kitchen sink and wanted to buy one from the defendant, if defendant had one that suited him, either on the day in question or on some later day. His fixed purpose to purchase a kitchen sink was his sole reason for going to defendant‘s store. In our opinion, the status of Doyle on this occasion, if not controlling, sheds much light on the status of plaintiff. True, plaintiff said that he knew nothing about kitchen sinks and had no intention of buying one, at that time, and that he went with Doyle to be “sociable,” but it is also true that he went with Doyle, so he testified, because both Doyle and Fitzgerald, his superior officer, asked him to go. Doyle was a customer and, obviously, thought it was to his advantage to buy the article desired at defendant‘s store. With Doyle‘s mission fully explained to defendant‘s salesman, in charge of the store, Doyle and plaintiff, as well as Matheny and Fitzgerald, were express-
In the case of Welch v. McAllister, 15 Mo. App. 492, 496, the evidence showed that plaintiff accompanied her husband into defendant‘s pork house, where her husband asked the foreman for a smoked shoulder. The foreman said he had no smoked shoulder, but did have some salted shoulders, pointing to the same in the back part of the storeroom. The foreman and plaintiff‘s husband started to the back part of the room to look at the salted shoulders and the plaintiff, following at some distance behind, fell into a hatchway and was injured. It was held that she could recover, though she was not invited, requested or commanded by her husband, the defendant‘s foreman, or any other person, to go into defendant‘s pork house on that occasion. Among other things, Judge THOMPSON, speaking for the court, said: “The general rule that an owner or occupier of enclosed premises owes no duty to trespassers, volunteers, or bare licensees, to keep them in a safe condition so as to prevent injury to persons thus coming upon them, is conceded. This rule has, however, no application in respect to injuries which happen in consequence of dangerous places being left in business houses, into which the public are impliedly invited by the proprietor or tenant to trade or do business with him.” This case, also, has become a leading case and is often cited by the appellate courts of this and other states. In this connection, see, also, Geninazza v. Storage Co., 252 S. W. (Mo. Sup.) 417; Main v. Lehman, 294 Mo. 579, 243 S. W. 91; Applegate v. Railroad, 252 Mo. 173, 158 S. W. 376; Crawford v. Stock Yards Co., 215 Mo. 394; 114 S. W. 1057;
(b) In view of the plain, outstanding facts of this case, it is apparent at once that plaintiff did nothing, after entering defendant‘s store, in excess of his rights as an invitee. On the other hand, at the very moment of his injury, he was engaged in doing the very thing he had actually been invited to do by defendant‘s salesman. The salesman admitted that, on the previous day, he placed the kitchen sink and other articles near the elevator shaft, in preparation for their removal from the second floor by the elevator and their delivery to the purchasers thereof. He knew that Doyle wanted to inspect the kitchen sink closely and that he could not do so with other articles piled against it and around it. And while assisting Doyle, Matheny and Fitzgerald in moving the crated bathtub from its leaning position against the partially crated kitchen sink, in order that Doyle might examine the kitchen sink, plaintiff took one step backward and fell into the unguarded elevator shaft and thereby met his injury. Again, the language of Judge LAMM in Glaser v. Rothschild, supra, is pertinent: “In getting at the essence of and giving reasonable scope to the rules of law applicable to the liability of the owner for injuries received by an invitee, it has been well held that his license does not give him the right to roam at will, without further invitation, to out-of-the-way places on the premises, wholly disconnected from and in no way pertaining to the business in hand; . . . The colloquy between plaintiff and defendant, the things that led up to it and produced it, being all usual incidents of a visit and a wait for defendant‘s good, it follows that the visit to the store, the wait and the visit to the water closet are elements of a single and inseparable transaction, colored by a common and dominant purpose, and such being the case, the law steps in and puts its reasonable construction on what happened in the light of the civilities of civilized life.” Thus, it was held in that case, that plaintiff‘s visit to the water closet in defendant‘s store, while waiting to talk business to defendant at defendant‘s
(c) The facts proven and reasonable inferences to be drawn therefrom made a clear case for the jury on the negligence charged. The elevator shaft was open and unguarded. Defendant‘s salesman knew that plaintiff was going near the elevator to look at the kitchen sink and that plaintiff was a stranger on the second floor. He did not warn the plaintiff as to the danger. The light was not sufficient to enable plaintiff to see and appreciate the danger. The elevator was used only by defendant and his employees. As to who left the gate open or who moved the elevator the record is silent. Confronting this situation, we are guided by the pointed language of Judge VALLIANT in the case of Crawford v. Stock Yards Co., supra: “There was no express evidence as to who left the gate open. But if the gate was open as and when the plaintiff says it was, was it an unwarranted inference that it was left open by defendant or some of its employees? If the gate was open and plaintiff was hurt by it, did it devolve on him to prove who opened it? If so, then, in a case like this, there would be no remedy for the injury. The gate was in the keeping of the defendant and if it was left in a negligent manner and no testimony showing who did it the inference would naturally be that the keeper did it.” Likewise appropriate, is the following: “The true ground of liability is the proprietor‘s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” [20 R. C. L. 57, par. 52.] It might also be reasonably inferred that the elevator slowly crept away from the second floor in the nighttime and left the gate open because it was propped or because the ratchet device did not work and cause it to drop. Defendant‘s salesman knew that the water pressure “sometimes” moved the elevator “a little ways.” Knowing this, ordinary care required that he turn the water off at night for the reasonable safety of customers and other invitees on the premises on the following day.
(d) The contention that plaintiff was guilty of such contributory negligence as to bar his recovery cannot be seriously considered. The only possible negligence, if any, chargeable to the plaintiff was his failure to see and avoid the open and unguarded elevator shaft, the mouth of the trap in which he was
In keeping with the foregoing conclusions, we rule that the demurrers to the evidence were properly overruled.
II. Counsel for defendant further contend, with great earnestness, that the trial court erred in giving plaintiff‘s Instructions numbered 1, 4 and 5, and in refusing defendant‘s Instructions C, D and E. We have examined these instructions with great care and find that no error was committed in giving plaintiff‘s Instructions 1 and 4, nor in the refusal of defendant‘s Instructions C, D and E. Our conclusion is different, however, as to plaintiff‘s Instruction 5. This instruction reads as follows:
“The court instructs the jury that if you find and believe from the evidence that the defendant had in his store an elevator shaft in which an elevator ascended and descended, and that the entrance to the elevator at the second floor was provided with a gate which did not open automatically, but could be opened only by hand, and that said elevator and gates were in the exclusive use and control of the defendant and his employees and was not a passenger elevator or open to and suffered to be operated by customers, but was used only by defendant‘s employees; and then if you further find that on the morning when plaintiff fell into the shaft and was injured (if he did so), and when the store was opened in the morning the gate to the elevator shaft at the second floor was found to be open, or up, then you are at liberty to infer that said elevator gate had been opened and left open by employees of the defendant.” (Italics ours.)
Because of the error of the trial court in giving this instruction, the judgment is reversed and the cause remanded for another trial.
Higbee and Davis, CC., concur.
PER CURIAM:—The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.