Commerce Realty Co. v. McElvey

• Court: Texas Civil Court of Appeals
• Writing for the Court: POPE
• Citation: Commerce Realty Co. v. McElvey, 250 S.W.2d 931 (Tex. Ct. App. 1952)
• Decision Date: 11 June 1952
• Docket Number: No. 12404,12404
• Petition History: writ ref'd n.r.e.
• Parties: COMMERCE REALTY CO. v. McELVEY et al.

Page 931

250 S.W.2d 931

COMMERCE REALTY CO. v. McELVEY et al.

No. 12404.

Court of Civil Appeals of Texas, San Antonio.

June 11, 1952.

Rehearing Denied July 16, 1952.

Moursund, Ball, Moursund & Bergstrom, San Antonio, for appellant.

Arthur A. Domangue, Harold D. Putman, San Antonio, for appellee.

POPE, Justice.

Plaintiff, while walking along a public sidewalk abutting defendant's building, tripped on a metal covering as it was being pushed open by a sidewalk freight elevator that was rising from the basement. A jury convicted the building owner of negligence, and this is an appeal from a judgment in plaintiff's favor.

The Commerce Realty Company is the owner of the Aztec Building in San Antonio. The back of that building extends along the south side of Crockett Street and there is a public sidewalk between the street and the building. Metal lids covered an elevator shaft that extended down to the basement of the building, and, according to the evidence, when the elevator was not in use the lids properly and safely covered the opening. The elevator was not defective mechanically. There were no defects in the coverings and they were flush with the sidewalk. In that situation, the coverings were safe for pedestrians and presented no hazard of any kind. However, when the elevator would rise from the basement, it was so equipped that it would push against the bottom of the metal lids and thrust them upward so the elevator could come above the sidewalk.

On the side of the building beside the coverings was printed in large letters, 'Notice. Freight Elevator May be Used 8 A.M. to 11 A.M. Use Commerce Street Stairway after 11 A.M., Building Manager.' As a warning to pedestrians, there was a bell installed on the side of the building over the sidewalk. It required manual operation by means of a push button in the basement near the entrance to the elevator. There was also a sign in the basement outside the elevator that stated: 'Notice, this car is not to be operated at any time without a man on sidewalk to warn pedestrians.' Access to the elevator could be gained only by going inside the Aztec Building, down to its basement, and proceeding along a corridor to the botton of the shaft.

At about 10 o'clock on the morning of September 11, 1950, Mrs. Jewel McElvey, was walking along the Crockett Street sidewalk, and as she walked across the metal lids they commenced to rise. She stumbled as the lids opened and suffered injures for which the jury awarded her $6,100. The jury convicted the owner of negligence, (1) for failing to station a person on the sidewalk to warn pedestrians, (2) for using insufficient warning devices, and (3) for failing to use reasonable safeguards to prevent unauthorized persons from operating the elevator.

The finding that the owner failed to use safeguards against unauthorized persons' operating the elevator assumed that unauthorized persons operated the elevator at the time of the accident. This is not supported by the evidence, and there is no proof of any kind that unauthorized persons were present or operating the elevator. There is proof of its operation, but the identity of the person is not established. The owner leased a portion of the basement for the operation of a cafe and another portion to a candy company. Those and other tenants of the building had the right to and did use the freight elevator for their own purposes whenever they desired, and that was usually during the time that the accident occurred. The building owner also retained the right to use the elevator, and that use was ordinarily at night for the removal of trash from the building. The owner denied that it ever used the elevator in the morning, and the proof is that neither the owner nor its agents, servants and employees were actually operating the elevator when the accident occurred. Certainly no more than a surmise or a scintilla of evidence connects the owner with the actual operation of the elevator at the time of the accident. But there are circumstances from the proof that indicate some tenant was using the elevator. There was also proof that persons making deliveries to the tenants, by going into the basement, could, and sometimes did, operate the elevator. The tenants were not named as defendants.

An owner who retains control over a sidewalk elevator and enjoys the privileges of its use must also bear the burden of a duty that accompanies that privilege. 'The rules governing the liability of the owner of leased premises for personal injuries sustained on the premises, as affected by the question as to who had control of the premises, or whether the tenant had exclusive posession have been applied quite generally in determining the owner's liability where the injury was occasioned by an appurtenance or contrivance placed in the highway for use in connection with the leased premises.' See Note, 160 A.L.R. 830. 'This duty rested upon the defendant, who had acquired a special privilege, acceptance and enjoyment of which had charged her with the special duty to the public of maintaining the coal hole at all times in a safe condition and properly guarded. She could not avail herself of this privilege without discharging the duty. The two were at all times coexistent, and she could not absolve herself from the liability thus created by delegating the performance of the duty to another.' Hart v. McKenna, 106 App.Div. 219, 94 N.Y.S. 216, 219; Westheimer Transfer &amp Storage Co. v. Houston Bldg. Co., Tex.Civ.App., 198...