233 N.W. 291 | S.D. | 1930
At the time material to this action, defendant, D. H. Carter, a resident of Illinois, owned a two-story brick building facing west on Main street in the city of Aberdeen. Adjoining it on the south, with a party wall between the two buildings, was a building owned by Aberdeen Hardware Company. Access to the second story of both buildings was by a stairway from Main street in front between the two buildings. The ground floor and basement of the Carter building was leased to defendant, Webb-Carter Shoe Company. The entire second story was leased to the Odd Fellows’ Lodge. In the front or west end of the second floor five rooms were partitioned off, in three of which the janitor, employed by the Odd Fellows, lived, the fourth was occupied as a cardroom, and the fifth as a kitchen, by the Odd Fellows. The remainder of the second story was occpied as a lodgeroom. The second story of the Aberdeen Hardware Company’s building was occupied as a Legion Hall by the American Legion. The Odd Fellows’ lease, in addition to granting the use of the entire second floor, expressly provided that the lessee should have the right to the use of the entrance and stairway from the front of the building to the rented premises fur the purpose of getting to and from said premises. It further provided that the lessee should have the right to sublet the premises or any part thereof to other lodges for lodge purposes. The lessor agreed to furnish heat for the premises from September ist until May 1st following in each year. In the east end of the building there was a freight elevator shaft leading from the second floor to the basement and situated so that the partition wall if extended would have passed through the center of the elevator shaft; one-half of the elevator shaft being a projection into the Legion Hall, and the other half a projection into the Odd Fellows Hall. A door in each projected part gave access to the elevator from the Legion Hall on one side and from the Odd Fellows Hall on the other side! The walls of the projec
It is clear that there is no liability on the part of Webb-Carter 'Shoe Company. That company leased onl}- the basement and the ground floor. Jt had nothing to do with the second floor. It did not employ Schuneman, and had no control over his use of the elevator or the entrance thereto on the second floor.
Taking up the question of Carter’s liability it is to be observed that the elevator was neither designed nor used for passenger service. It was designed exclusively to be used as a freight elevator to take goods to and from the basement, principally for the convenience of the stores on the ground floor, but was also used to some extent by the janitor in taking supplies to the lodgerooms on the second floor, and removing garbage and other refuse therefrom. There was no invitation, express or implied, for the public or any member of any of the fraternal orders leasing the hall, to use it. It does not appear that any one but the janitor had ever used it at the second floor, nor does it appear that the door opening into the elevator room had ever been opened by any but the janitor except on the occasion when Glau opened it two or three weeks 'before the accident. Plaintiff did not know whether or not Glau knew of the elevator and took the precaution to see that it was in place before undertaking to cross to the Legion Hall on that occasion. The front stairway was expressly mentioned in the lease as the way to be used for access to and from the premises rented by the Odd Fellows. It is contended by counsel for Carter that plaintiff, in entering through the door into the elevator shaft was a trespasser, and therefore went there at his own risk. While the lease held by the Odd Fellows included the entire second story of the building, the sublease held by the Knights of Pythias was only of the hall. The sublease was verbal, and was concluded between plaintiff, as an officer of the Knights of Pythias, and one of the officers of the Odd Fellows. Plaintiff said he was right in the hall when he rented it. It seems reasonable to assume that plaintiff should have known what he was renting, and that he should have found out to what the various doors of the hall led if he supposed that the Knights of Pythias were entitled to make use of the rooms
The judgment and order appealed from are affirmed.