Cox v. Bondurant

• Decision Date: 04 May 1925
• Parties: WILLIAM H. COX, RESPONDENT, v. JAMES D. BONDURANT, SR., WILLIAM P. BONDURANT AND JAMES D. BONDURANT, JR., CO-PARTNERS DOING BUSINESS UNDER AND BY THE NAME OF PALACE BAKERY, APPELLANTS.
• Court: Missouri Court of Appeals

7 S.W.2d 403

WILLIAM H. COX, RESPONDENT, v. JAMES D. BONDURANT, SR., WILLIAM P. BONDURANT AND JAMES D. BONDURANT, JR., CO-PARTNERS DOING BUSINESS UNDER AND BY THE NAME OF PALACE BAKERY, APPELLANTS.

Kansas City Court of Appeals. Missouri.

May 4, 1925.

Appeal from the Circuit Court of Adair County. — Hon. James A. Cooley, Judge.

REVERSED.

O.E. Murrell and Campbell & Ellison for respondent.

Higbee & Mills for appellants.

TRIMBLE, P.J.

Plaintiff received some bruises and an injury to his left ankle when he fell into an elevator shaft on defendant's premises. He brought this suit for damages and recovered a verdict and judgment for $3500. Defendants have appealed.

In Kirksville, Missouri, defendants own a two-story brick business building with basement, in which they conduct a general bakery and creamery business. The west side or wall of said building abuts upon an alley, and against said west wall is a platform about two feet wide, eighteen feet long and nearly four feet high. The platform is on a level with the first floor of the building. Entrance from the platform into the building is had through a doorway in said west wall. Just inside the building and in this doorway is the elevator shaft, so that when the elevator is at the first floor, one can step through the doorway immediately from the platform onto the floor of the elevator. The latter was operated by electricity and could be moved from the basement to the first and second floors. When it reached either the basement or the top floor, it would stop automatically but, in order to have it stop at the first floor, whoever was operating it had to pull a small control rope and put it into a slot or horseshoe-shaped device. The north and south sides of the elevator shaft were boarded up solid to the top of the building, The east side of the elevator shaft was protected by a gate which automatically closed when the elevator was lowered or raised from the first floor. The west side of the shaft was, of course, the doorway in the west wall of the building; and in the summer time this doorway was protected by two wire screen doors, the doorway being five or six feet wide and seven feet high. These doors were kept closed by means of stout springs, so that in entering from the outside platform to the elevator one must open one or both of said doors and hold them open until he steps inside, whereupon the screen doors would immediately close on account of their springs. Thus access to the interior of the building from the platform was had through the doorway and across the elevator when at the first floor, or, if it were at the basement, the top of the elevator, which was covered with a heavy wire netting or mesh, afforded a means of going over it and through the gate on the east side to the interior of the building. However, when the elevator was thus at the basement, this top of the elevator was two inches or more above the level of the platform and first floor of the building.

Defendants bought milk from various farmers, including plaintiff, which was delivered in the ordinary commercial milk cans, hauled by the farmers to this outside platform and taken by them through the doorway in the west wall to the place where the milk was received.

For sometime, perhaps a year, plaintiff had delivered milk by unloading his cans onto the outside platform, and, after placing the cans and himself on the elevator, he would start the elevator downward, by giving the proper pull to the rope, and when the basement floor was reached the elevator would stop automatically, and the cans would then be taken off the elevator to the point in the basement where defendants received them. Plaintiff would then return to the first floor by getting upon the elevator and giving the rope the proper pull which would start the elevator upward and he would stop it at the first floor by pulling the control rope into the slot for that purpose. He made these deliveries and went over this route in this way daily.

In the spring of 1922, defendant began receiving the milk somewhere in the interior of the building on the first floor, and access to the building from the platform was had through the above-mentioned doorway and across the elevator floor if it was at the first floor, or across the wire netting on its top if the elevator were in the basement. Plaintiff continued to deliver milk on the first floor in this way from the spring of 1922 until his injury which happened on August 31, 1922, at 8:30 in the morning.

Plaintiff drove his team of horses to the platform and unloaded his two cans of milk thereon. He then started to take them through the doorway into the building. He admits he was hurrying because he was somewhat late and a man had driven up behind his wagon and was waiting for him to get out of the way. Plaintiff says he picked up one can with his right hand and started into the doorway by opening one of the screen doors with his left, pushing the door around and holding it open, while he turned around and with his right started to swing the can into the elevator and stepped in, but the elevator was not there and he fell to the basement below, a distance of about twelve feet. He says as he turned to pick up the can with his right hand while holding the screen door open with his left, this placed him with his back to the elevator and his face toward the alley, and that in this position he stepped inside, not backwards, but "sideways," his right side going in first. He says he didn't know which way he was looking, whether to the north or west into the alley, nor whether he turned his head with his body; that he didn't stop to see where the elevator was, but simply grasped his milk can and walked in there without looking. He was asked —

"Q. You didn't stop to see where the elevator was? A. No, I never stopped to see where it was.

"Q. You simply grasped your milk can and simply walked in there? A. Yes, sir.

"Q. And without looking? A. Yes, sir."

He gave the size of the doorway and screen doors as above stated, and said that when he opened the screen doors there was nothing between the elevator and outdoors, and that he had to open the screen doors and hold them open in order to get inside.

He was further asked:

"Q. Didn't you stop to look when you delivered milk there and started to walk in there? A. Not every time I didn't.

"Q. I mean this particular time? A. No, I didn't.

"Q. You didn't stop to look? A. No, I didn't."

He denied that, as he entered, his team was "fixing to start off" and said his attention was not attracted to his horses, but admitted that he was "hurrying up to take my milk in" as he was "mighty near late that morning."

The petition alleged the maintenance of the doorway and the elevator shaft and elevator as above described and charged that it had long been the custom and practice of defendants to keep said elevator either at the bottom of the shaft so that persons entering the doorway could walk over the top of the elevator, or to keep said elevator at the first floor so that such persons could walk through and across said elevator, and plaintiff and other sellers of milk had for a long time, at defendants' invitation, delivered their milk through said doorway and through or over said elevator in this way; that at all the times when plaintiff delivered milk to defendants through said doorway prior to his injury, said elevator was kept so that he could either walk over and across it or through it, and plaintiff, relying on that practice and custom, believed said elevator was so kept and maintained and in said position at the time he was hurt.

The negligence charged was a failure to keep said building well lighted in and about said elevator shaft whereby persons entering said doorway could not well see said shaft or the location of said elevator; also that defendants, prior to the time of plaintiff's entrance, negligently removed the elevator from its usual and customary location, leaving the elevator shaft open from the doorway to the bottom, and negligently failed to prevent plaintiff and persons so entering said doorway from falling down through said elevator shaft, and negligently failed to warn plaintiff that the elevator had been removed from its customary location so that he could not walk over, across, or through said elevator when delivering milk as aforesaid.

The answer contained a general denial and further averred that if plaintiff received any injuries, "the same were caused solely and exclusively by his own negligence in carelessly and negligently stepping into said elevator shaft without first ascertaining or looking to see if said elevator was in place and without first ascertaining whether or not he could cross said elevator or elevator shaft in safety; and defendants aver that the plaintiff knew or by the exercise of ordinary and reasonable care and caution on his part, could and should have known that said elevator at the time and place mentioned in plaintiff's petition, was not even with the bottom of first floor of said building but was at the second floor of said building and that said elevator shaft therefore could not be crossed by him.

At the close of the entire case, defendants offered a demurrer to the evidence, but this was overruled. Appellants contend this was reversible error.

Respondent contends that contributory negligence was not pleaded, and, therefore, was not in the case. If contributory negligence, as a matter of law, appears in plaintiff's own evidence, then it would seem that this element would be in the case as a part...