Aiken v. Sidney Steel Scraper Co.

• Decision Date: 05 November 1917
• Docket Number: No. 12523.,12523.
• Citation: 198 S.W. 1139,197 Mo. App. 673
• Parties: AIKEN v. SIDNEY STEEL SCRAPER CO.
• Court: Missouri Court of Appeals

198 S.W. 1139

197 Mo. App. 673

AIKEN v. SIDNEY STEEL SCRAPER CO.

No. 12523.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Rehearing Denied December 3, 1917.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by William H. Aiken against the Sidney Steel Scraper Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Walsh & Aylward and Ben Terte, all of Kansas City, for appellant. Sebree, Conrad & Wendorff, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff was injured by falling down an open elevator shaft. He charges defendant with negligence, and brought the present action. At the conclusion of the evidence in his behalf the trial court gave a peremptory instruction to the jury to find a verdict for defendant.

It appears that defendant kept machinery for sale, and that plaintiff, desiring to purchase an attachment or casting belonging to certain machinery, went to defendant's establishment and was waited upon by a Mr. Hall, defendant's employé in charge of the stock. Hall informed him they did not have what he wanted detached, but thought he had it attached to machinery which he kept in the basement, and at Hall's suggestion they went down to the basement in the elevator to see. Hall ran the elevator. They found what plaintiff wanted, and Hall said he would have a mechanic detach it, and, as it would take a little time, invited plaintiff to go to a nearby place for lunch. On their return, as they entered the building, some one wanted to speak to Hall, he stopped, said something to plaintiff about his going on to the elevator, but just what it was is not made clear by plaintiff's testimony in his own behalf. At one place he stated that Hall directed him to go on "to the elevator and wait for him to come." At another place he stated it, "Go around to the elevator and I will be there in a few minutes." At another place he stated that Hall told him to "wait in the elevator." Defendant objects to this evidence being accepted as a direction for plaintiff to get into the elevator, and that it should be taken to mean that plaintiff was to go to the elevator, and that he would be along presently. As it will make no difference in our disposition of the case we will consider the latter to be the meaning of plaintiff's testimony.

The testimony showed that when plaintiff went to the basement with Hall before going to lunch he did not observe there was a gate at the elevator shaft. We think it fairly to be inferred that he must have seen there was no gate at that particular time working in connection with the movement of the elevator. He testified that after leaving Hall he, in obedience to Hall's request, proceeded to the elevator, and observed again that it was poorly lighted at that place, there being only one electric bulb, and that down at the end of the room. He said:

"I just walked around there, and, thinks I, this thing is all open, and I couldn't see anything but the floor. It looked like the floor, the whole thing did, and I walked in there as onto an elevator, but the elevator was not there; there was no gate there either. I stepped off in there, and that is the last I knew."

At another place he stated:

That the empty space in the shaft "looked exactly like the floor in the elevator, and I supposed the floor of the elevator was there," and that you could not tell the difference "to save your life."

He was asked:

"What was it that prevented you from knowing the elevator was not there?"

And his answer was:

"It was not light enough to see."

In this connection plaintiff has cited us to authority to the effect that, when one sees an elevator gate open, it is an implied assurance that he may safely enter. The applicability of these is rendered doubtful here, since plaintiff, on his first trip to the basement, had seen there was no gate. It is therefore left for us to determine, without the aid of such authorities, the status of the evidence on the question of contributory negligence; does it appear, as a matter of law, or is it of doubtful character, to be solved by a jury?

We think it is for the jury. Accepting the evidence in plaintiff's behalf for the fact, as we must, it is manifest that defendant, for the purpose of transacting business with plaintiff, invited him to use an elevator which was so dimly lighted as to make appearances deceptive. It was not the light of broad day so that one could be charged with listlessly and blindly blundering into an elevator shaft; nor was it so dark that one could know, or realize, that he could not see. But it was in that indefinable state between full light and complete darkness which permits one to see imperfectly, and frequently deceptively, as in twilight. Plaintiff's case meets that situation. 9 Ruling Case Law, 1258; Morgan v. Saks, 143 Ala. 139, 141, 38 South. 848; Noyes v. Des Moines Club (Iowa) 160 N. W. 215, 218; Marshall v. United Railways, 184 S. W. 163. He approached the elevator intending to step in and wait for Hall. He thought he saw it — the open space had exactly the appearance of the floor — and he stepped in. All prudent men will not say that a reasonable man would not have been so deceived and have acted in like manner, and that being true, plaintiff's conduct should be judged by a jury.

It appears that Tomlinson & Co. were the lessees of the building, and that they sublet a certain space therein to defendant "Sidney Steel Scraper Company." Both these were made parties defendant, but the case was dismissed as to the former. The contract between these parties was that Tomlinson & Co. were "to furnish you with 2,400 square feet floor space 24×100, at a rental of $50.00 per month, this charge covering the unloading of cars, proper arrangement of stock in the warehouse, filling of orders as per your instructions. In addition to the above, we are to furnish you with office space, electric light, heat, use of vault for storing records, telephone, service, including name in telephone directory."

The idea is advanced that defendant, the Scraper Company, is not liable because it was not in control of the building and elevator; and cases are cited which we think have no bearing on the facts upon which plaintiff relies for his action. The facts, as the evidence in plaintiff's behalf tends to show them, are that defendant rented of Tomlinson, and that it kept goods, wares, and merchandise for sale stored in the building, some in the basement where the article in controversy was found, and some upstairs; that it sold these articles to purchasers, and that it used the elevator for carrying up and down both its goods and its customers to whom it showed and sold them. In the instance in controversy plaintiff called as a customer on defendant, asked for what he wanted, and was taken in charge by defendant's manager, Hall, with the result already stated. That defendant became liable for negligence in showing and directing plaintiff over the premises and in the means he was invited and directed to use, there should be no doubt. When one "invites the use of his premises for purposes connected with his own benefit," the party becomes an invitee, and it is the duty of the person inviting him to take ordinary care to prevent an injury to him. Glaser v. Rothchilds, 221 Mo. 180, 185, 120 S. W. 1, 22 L. R. A. (N. S.) 1046, 17 Ann. Cas. 576. As said by the Supreme Court of Iowa:

"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." Burner v. Higman, 127 Iowa, 580, 586, 590, 103 N. W. 802.

"The particular tenant extending the invitation is liable."

See, also, Reynolds v. John Brod Chem. Co., 192 Ill. App. 157.

And there is neither justice nor reason in the idea that plaintiff, a customer invited into the building by defendant, should be held bound by defendant's private contract as a subtenant.

Defendant has cited us to Andrus v. Bradley Alderson, 117 Mo. App. 322, 93 S. W. 872, and McGinley v. Alliance Trust Co., 168 Mo. 257, 66 S. W. 153, 56 L. R. A. 334, as sustaining its theory that it was not in control of the elevator, and could not be liable for the injury received by plaintiff. That and other cases cited do not resemble this. That case was brought against a tenant by his employé. The tenant had nothing to do with the operating of the elevator, and "from the nature and subject-matter of the contract of leasing was not and could not, as tenant, have been in control of it." This case belongs to a different class, and is instituted by a party plaintiff sustaining an altogether different relation to the party defendant. This plaintiff was defendant's customer invited into the building where it kept its goods for sale, and invited to go to the particular...