Baker v. Best

• Decision Date: 04 March 1908
• Citation: 107 S.W. 1192
• Parties: BAKER v. BEST.
• Court: Kentucky Court of Appeals

107 S.W. 1192

BAKER v. BEST.

Court of Appeals of Kentucky.

March 4, 1908

Appeal from Circuit Court, Montgomery County.

"Not to be officially reported."

Action by James M. Best against Kate S. Baker and another. From a judgment for plaintiff, defendant Baker appeals. Affirmed.

B. W Hall, C. H. Shield, and J. B. McCormick, for appellant.

W. B White, for appellee.

HOBSON J.

On November 8, 1905, J. M. Best fell through an elevator shaft in what is known as the "Tyler Apperson Building," owned by Kate S. Baker, in Mt. Sterling, Ky. He brought this suit to recover for his injuries against her and J. E. Dunn. The court, on the hearing of the case, instructed the jury peremptorily to find for Dunn, and submitted to the jury the question whether Kate S. Baker was liable. The jury found for Best $500, and she appeals.

Dunn made a proposition on September 18th to buy the property. On November 7th his proposition was accepted. A deed and notes were drawn and placed in the hands of C. H. Shield, to be delivered by Shield, if, upon an examination of the title, he approved it. Best was injured on the 8th. After this, on the 20th, Shield examined the title and the deed and notes were delivered; it being agreed between the parties that Dunn should take the rents from November 7th. But on November 8th the title had not passed from Mrs. Baker to Dunn. If Shield had reported adversely to the title, the deed would not have been delivered, and as he had not reported on November 8th the title remained in Mrs. Baker until the deed was delivered absolutely to Dunn. The circuit court, therefore properly held that Dunn was not liable.

The proof for Best was to the effect that the building was rented out for offices; that he was in the building to see a lawyer, who had an office on that floor; that the hallway was not lighted so that he could see; that the lawyer had two rooms, with a door in each entering the hallway, and between these two rooms was the elevator shaft, with a door entering it; that the door of the elevator shaft was left open, and he, taking it for the door to the lawyer's office, walked into it and fell down the shaft. He was precipitated to the cellar, a distance of 18 feet, according to his proof; was confined to his bed about 10 days; suffered much pain in his back and shoulders. At the trial 18 months afterwards he still continued to suffer, and had been unable to do hard manual labor as before the fall. The verdict of the jury for $500 cannot be said to be so excessive as to indicate passion or prejudice.

If the elevator door was left open in a dark unlighted hall, where people were expected to come to get to the offices on either side of the hall, it was a question for the jury whether ordinary care was used, because strangers using the hallway would...