Bonanomi v. Purcell

• Decision Date: 09 April 1921
• Docket Number: No. 22025.,No. 22361.,22025.,22361.
• Citation: 287 Mo. 436,230 S.W. 120
• Parties: BONANOMI v. PURCELL et al. (two cases).
• Court: Missouri Supreme Court

230 S.W. 120

287 Mo. 436

BONANOMI v. PURCELL et al. (two cases).

No. 22025.

No. 22361.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Appeal from St. Louis Circuit Gout; M. Hartmann, Judge.

Action by Joseph G. Bonanomi against William Purcell and C. D. Gregg. From an order sustaining a motion to set aside a nonsuit as to defendant Purcell, and granting new trial, he appeals; and from order overruling plaintiff's similar motion as to defendant Gregg, plaintiff appeals. Reversed on defendant Purcell's appeal, plaintiff's appeal dismissed, and cause remanded.

This is a suit against appellant Purcell, as tenant and occupant, and his codefendant Gregg, as owner, of a building in the city of St. Louis, for personal injuries sustained by plaintiff in falling into an elevator shaft in said building. The petition charged that, while the plaintiff was in the basement of the building for and engaged in the transaction of business with the tenant, he stepped into an open and unguarded elevator shaft and fell about 12 feet, receiving serious and permanent injuries. The petition contains five assignments of negligence, three of which were based upon common-law duties and two upon violation of certain ordinances of the city. The first three charge that the elevator shaft was negligently and carelessly left by defendants open, unguarded, and without any guard rails or inclosures whatever around it, and that there were no lights in the basement to indicate the open and unguarded condition of the shaft, all of which conditions existed at the time Gregg leased the premises to Purcell. The fourth and fifth assignments were founded, respectively, upon two paragraphs of section 2183 of the Revised Code of the City of St. Louis which are as follows:

"Paragraph 22. Lights.—A light shall be provided in all passenger and freight elevators." "Paragraph 30. Every open hatchway in which a freight elevator is installed shall hereafter be securely protected on all sides to a height of at least six feet—said inclosure may be solid or constructed of two and one-half inch mesh wire of at least number eleven gauge, or of vertical or horizontal strips. If vertical strips are used, the open space between strips shall not exceed two and one-half inches. The entrance to the shaft shall be provided with a semiautomatic gate at least five feet in height, properly fitted with a device to prevent the gates from being opened until the platform of the car arrives at the floor landing, and which shall cause the gate to close automatically as the car leaves the floor landing."

The petition charged that defendants had violated all the provisions of both city ordinances, and that from the time of leasing up to the time of the accident neither the light nor the inclosures or the gates required thereby had been installed in the said shaft, whereby and in consequence of all said negligent acts and omissions the plaintiff was injured as stated. Damages were laid and asked in the sum of $10,000. Each of the separate answers of the defendants consisted of a general denial and plea of contributory negligence.

After hearing the evidence, the court, upon motion of each of the defendants, gave instructions to find for each of them, whereupon the plaintiff took a nonsuit, with leave to move to set the same aside, and in due time filed such motion, which was sustained as to the defendant Purcell and overruled as to Gregg. Purcell takes this appeal from the order of the trial court sustaining, as against him, the motion to set aside the nonsuit, and granting a new trial. Plaintiff appeals from the order overruling his similar motion as to Gregg.

It will be seen from the foregoing statement that the only question for our determination in Purcell's appeal is whether or not the evidence against him was sufficient to make a case for the jury. Respondent Gregg has filed his motion to dismiss plaintiff's appeal, on the ground that no final judgment was entered upon the nonsuit suffered by plaintiff as against Gregg, and that the order overruling the motion to set aside the nonsuit as against him is not a judgment or order from which an appeal lies. These appeals have been consolidated in this court and tried as one case, and will be so treated in this opinion.

The appellant Purcell was a harness manufacturer in St. Louis, doing business in a building at the southeast corner of Main and Market streets. The plaintiff was a credit man for the Armour Leather Company, who sold him leather for use in his industry. Some question arose as to his ability to pay for leather on hand in his factory purchased from the Armour Company on credit. The matter came to the hands of Mr. Bonanomi, who arranged with Mr. Purcell that the leather might be removed from the factory at Main and Market streets to an Armour warehouse, to be held for him and released from time to time as paid for. Mr. Bonanomi, on the day of the accident (April 23, 1918), went to the factory for that purpose. Mr. Purcell's office was on the first floor. The leather was in the basement, 10 feet below, reached by an inside stairway, which reached the floor of the basement about 10 feet from the shaft of the freight elevator which came from the `floors above down into the basement. The stair landing was about midway between the elevator and the street door of the basement. The elevator shaft in the basement was inclosed on three sides. On the side toward the room it had apparently been inclosed by double swinging doors, one of which was gone, leaving an open space of half the width of the shaft, say about 2 feet.

The leather was in the basement. After the arrangement for removing it had been made in the office, Mr. Purcell said, "I will take you down and show you where it is." He said, "Come this way," and the two men and Mr. Purcell's man, Fred Ross, got in the car and went down. There was no gate or automatic or other device to keep the shaft closed until the car should arrive at the floor landing. Either Mr. Purcell or his man operated the elevator. There was no light in it. When they arrived at the basement floor, the two other gentlemen got out, and the plaintiff followed them. The basement was very dark, there was no light in it. They left the elevator at the basement floor and level with it. The man opened the doors to admit light. Mr. Purcell showed plaintiff the Armour leather and its markings, and left plaintiff with Fred and a helper, whom he told to assist in moving it as plaintiff checked it out. He left in a few minutes. Plaintiff went to the open door of the basement, where he could see the marks on the leather as it was brought to him. There were 10 sides in each roll, and the weight of the roll was marked on the outside. Mr. Purcell, after giving directions where the rolls might be put when brought out of the basement, went out through the basement door, up the sidewalk, and around the corner of the building, a total distance of about 50 feet, to the main entrance of the office floor.

The plaintiff, having substantially described these surroundings, proceeded to describe the immediate incidents of the accident, as follows:

"Judge Anderson: A little louder; I can't hear you.

"The Witness: I said, when he had taken all the rolls of leather out of the basement, and I had come back in the basement and asked him if we were through, if he had taken all the leather; he says, Yes;' I says, `Let's go upstairs;' and I started over toward the elevator.

"Judge Anderson: Q. Who were you talking to? A. Fred, his man. I says, `Let's go; if you are through, we will go upstairs' So I started to go up the same way we came down, and I started over towards what I thought was an elevator, and it looked to me just like the open door of the elevator, and I stepped in, and as I stepped in I fell down to the bottom of the shaft. There were no lights there.

"Judge Green: Q. Was there any guard, or gate, or anything there over that elevator shaft at that time? A. No sir; not a thing.

"Q. Did you know the elevator was not there? A. No, sir; I did not.

"Q. Did you think it was there? A. I know it was not.

"Q. Did it appear as though it was there? A. It appeared as if it was there.

"Q. State to the jury how light it was down there at that time. A. Well, there was no lights down there; it wasn't light at all. The elevator being over away from the street, from any of the windows, if there were any windows there, it being dark, you could hardly distinguish the shaft.

"Q. And how far into the shaft did you fall? A. Well, I have no means of ascertaining correctly; but I imagine between 10 and 12 feet."

On cross-examination the plaintiff testified:

"Q. So you could have walked that 50 feet and gone right into that doorway on the first floor of the building, couldn't you?"

Here followed an objection and much argument. The objection being overruled, the examination proceeded:

"Q. There was this perfectly good granitoid sidewalk; there wasn't anything the matter with the sidewalk, was there? A. Not that I know of.

"Q. You didn't see anything the matter with it at all? A. No.

"Q. Perfectly good, solid, granitoid sidewalk up to that doorway, wasn't there? A. As far as I know it was.

"Q. And you had been in that very doorway, the entrance to the building, the entrance to Mr. Purcell's office, only an hour and a half or two hours before; that is true, isn't it? A. Yes, I had.

"Q. And you preferred and did go back into the basement, which you say was dark and unlighted; is that right? You still want to say that? A. I want to add this: That way back in the basement there was a gas jet, which the men lit in order to find the leather in the back part of the basement.

"Q. Way back in the back part of the basement. That was how far from where this elevator was? A. About 20 feet, I should say, as much as I can remember.

"Q. You wouldn't say it was 120? A. No; I can't say that.

"Q. Now, you say they lit a gas...