Burner v. Higman & Skinner Co.

Decision Date09 June 1905
PartiesBURNER v. HIGMAN & SKINNER CO. ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Woodbury County; F. R. Gaynor, Judge.

Action at law to recover damages for injuries received by plaintiff in falling into an elevator well of a building owned by defendants James P. & T. S. Martin. The other defendants were tenants of the Martin's, and they are sought to be held liable as joint tort feasors. At the conclusion of plaintiff's evidence, the trial court directed a verdict for the defendants, and plaintiff appeals. Affirmed in part, and reversed in part.F. E. Gill, for appellant.

J. S. Lawrence, for appellee Prugh.

Marks & Mould, for appellee Pellitier Dry Goods Co.

W. G. Sears, for appellees Martin.

Shull & Farnsworth, for appellee Higman & Skinner Co.

DEEMER, J.

Defendants James P. & T. S. Martin were the owners of a large building in the city of Sioux City, having four stories and a high basement. This building was erected in the year 1889, and was acquired by the Martins in the year 1901. At the time of their purchase defendant Prugh was in possession as lessee of the basement and first story of the building, which he used for a crockery store. The defendant Higman & Skinner Company were at that time in possession of the three upper stories as lessees, and they used the same for mercantile purposes. The Martins purchased subject to these leases. After acquiring title to the property, new leases were entered into between the Martins and defendants Prugh and the Higman & Skinner Company, covering the same floors which they had theretofore occupied. In each lease it was provided that the lessee should “have the right in common with other tenants of said building, to the use of the freight elevator in said building.” There was also a covenant in each binding the lessee to keep the building, etc., in as good repair as it then was “or might at any time be placed in by the lessor,” but the lessor made no covenant to repair. Thereafter the Higman & Skinner Company, with the consent of the Martins, sublet the fourth floor of the building to the Pellitier Dry Goods Company for storage purposes only. This lease is not in evidence, and there is no showing that the dry goods company ever had any right to or control over the elevator well where plaintiff received his injuries. True, there is evidence that they used the elevator in common with the other tenants, but there is no testimony that they had any right thereto, except by sufferance. The building, as we have said, was a large one--covering all but 12 feet of the east end of a lot 50 by 150 feet, extending east and west, and fronting on what is known as “Nebraska Street,” in the city of Sioux City. At the rear of the building, and covering the 12 feet of the lot hitherto mentioned, there is a covered platform or shed extending to an alley in the rear of the building. This platform was inclosed; three sides thereof having been constructed by one of the tenants with lumber sash and doors belonging to him, and which he had the right to remove. The entrance to the building was at the west end, on Nebraska street. At the rear or east end of the building there was the freight elevator mentioned in the leases, which was propelled by a water motor in the basement. The east wall of the building was the east wall of the elevator well. The other sides of this well, which was about 8 by 10 feet in size, were made of frame partitions, in which there were doors on the different floors. Through the east wall of the building, which constituted a part of the elevator well, and on a level with the outside platform, there was an opening into the elevator shaft, made for the purpose of getting goods from the covered platform upon and onto the elevator. To this opening there was a door, with rollers attached to the top, which ran on a horizontal track over and beyond the opening. This door, when closed, protected the elevator shaft and well; and, when open, left it in an exposed condition. On the outside of this sliding door there was printed in large letters, “Keep the Door Closed.” But when the door was open this sign was not in sight. After the defendant Prugh obtained his second lease of the building, he put up a bar on the inside of the east door, which was hung on a pivot at one end in such a manner as that it could be lowered across this east entrance to the elevator, and retained in a horizontal position some three feet from the doorsill leading into the elevator. This bar could be easily raised and lowered. The distance from the top of the first floor to the bottom of the elevator well is something like 15 feet. On the morning of December 2, 1902, plaintiff, an employé of an independent dray line in Sioux City, was requested by the owner of some goods which were kept in storage for hire by the defendant Higman & Skinner Company to go to the building in question and remove the goods. An employé of the owner of the goods--a man by the name of Lockhart--accompanied him. They drove into the alley at the rear of the building, and backed the team up to the shed door, preparatory to loading the goods onto the wagon. Lockhart then started to go into the building. The east door to the elevator shaft was open, and the bar had been raised. The shed was dark, as it always was in the early morning and on dark days, and the door to the elevator was pushed back, so that the sign thereon was not visible. Lockhart entered through this door, and immediately fell into the elevator well. Plaintiff, who was following but a short distance behind, but who did not know of the accident which had befallen his companion, also passed through the open door, into the elevator well, fell to the bottom of the shaft, and received the injuries of which he complains. He had never been in the building before, and did not know of its arrangement.

The negligence charged is the faulty construction of the elevator, failure to protect or guard the shaft, insufficient light in the covered shed or platform to warn persons who might lawfully enter the east door into the elevator of present dangers, and failure to provide automatic gates or to post some one to warn persons properly upon the premises of attendant dangers.

As to defendants Prugh and the Pellitier Dry Goods Company there is manifestly no ground for recovery, no matter how the case stands as to the other defendants. Neither of these parties were under any obligation, so far as plaintiff was concerned, to repair or keep the elevator in a safe condition. The Pellitier Company was simply a sublessee of one floor of the building, without any express contract rights as to the use of the elevator. The right to do so may have passed as an appurtenance to their lease, but they were under no obligation to repair, remodel, or guard the said elevator for plaintiff's protection. They took this easement as they found it, and were not obliged to repair it for the use of other tenants or their customers or licensees. Prugh held a lease of the first story and basement, but he was under no covenant to repair. By the terms of his lease, he had a right in common with the other tenants to use the elevator in its then condition, but was not required to make it safe for persons who were strangers to him, and to whom he had extended no invitation to enter the premises. Negligence is bottomed upon some duty which the party charged therewith owes to the one who is injured. That is to say, neither the owner nor the occupant of property is bound to keep it in such condition as that no one may be injured thereby. Liability is predicated only on failure upon the part of the party charged to perform some duty which he owes to the one who is injured. If one, therefore, goes upon premises without invitation, express or implied, the owner or occupant thereof is under no duty to look out for his safety; and, if he be injured while there without lawful right or as a bare licensee, no recovery can be had. Thompson on Negligence, §§ 946, 1075. Neither Prugh nor the Pellitier Company extended any invitation to the plaintiff to enter the premises. As to them he was, at most, a bare licensee, and from them there can be no recovery.

2. As to the landlords, the Martins, and the Higman & Skinner Company, we have a different proposition. Plaintiff was impliedly invited by the defendant the Higman & Skinner Company to enter the premises. They undertook to store goods for plaintiff's employer, and manifestly invited this employer or his representative to come upon the premises to get the goods. The case as to this tenant depends upon the nature of the duty it owed plaintiff. Presumptively the one who occupies premises is liable to one who is negligently injured while rightfully thereon. In some cases the landlord may also be liable, either individually or jointly with his tenant. The reason for the rule is that the tenant, and not the landlord, was, at common law, in the absence of covenant, bound to keep the premises in repair, in so far as strangers to the lease were concerned. There is also a social duty resting upon one who occupies premises to keep them in a reasonably safe condition for those whom he invites to come thereon. The landlord, as a general rule, however, has violated no duty which he owes to third persons, having exonerated himself when he lawfully committed the premises to the care of a tenant. To this general rule of nonliability on the part of the landlord there are exceptions--for instance, where the landlord retains control over the premises, or the part thereof where the injury occurred, as a...

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