O'Dell v. Dean

• Decision Date: 14 July 1947
• Docket Number: 40040
• Citation: 204 S.W.2d 248,356 Mo. 861
• Parties: Robert O'Dell, Appellant, v. Frank Dean
• Court: Missouri Supreme Court

204 S.W.2d 248

356 Mo. 861

Robert O'Dell, Appellant, v. Frank Dean

No. 40040

Supreme Court of Missouri

July 14, 1947

Rehearing Denied September 8, 1947.

Appeal from Jackson Circuit Court; Hon. Paul Buzard, Judge.

Affirmed.

Stanley Garrity, William H. Sanders and Caldwell, Downing Noble & Garrity for appellant.

(1) Instruction 7 erroneously directed a verdict for defendant upon a general finding of contributory negligence, without requiring the jury to find that such a course of conduct directly or proximately caused or contributed to cause his injuries, nor that the plaintiff committed certain specific and definite negligent acts which would permit no reasonable inference but the inference that such negligent acts directly caused or directly contributed to the cause of his injuries. Barrett v. Town of Canton, 338 Mo. 1082, 93 S.W.2d 927; Tappmeyer v. Ruckoff, 45 S.W.2d 890; Barr v. Missouri Pacific R. Co., 37 S.W.2d 927; Stumpf v Panhandle Eastern Pipeline Co., 189 S.W.2d 223. (2) Instruction 6 peremptorily directed a verdict for the defendant if the jury merely found that the plaintiff opened the elevator door and stepped into the shaft. This instruction erroneously omitted the necessary requirement that the plaintiff must have failed to have looked before he stepped through the elevator door. In the absence of such a failure to look, plaintiff could not have been contributorily negligent as a matter of law. 18 Am. Jur., pp. 550, 565; Auferheide v. Thal, 63 N.E.2d 329, 77 Ohio App. 96; Bender v. White, 92 P.2d 268, 199 Wash. 510; Cox v. Bondurant, 7 S.W.2d 403, 220 Mo.App. 948; Senseney v. Landay Real Estate Co., 131 S.W.2d 595, 345 Mo. 128. (3) Plaintiff's testimony and continually emphasized theory of the case that he looked before he stepped through the elevator door was erroneously ignored and excluded by these instructions which purported to cover the entire case and direct a verdict on the grounds of contributory negligence. 1 Raymond, Missouri Instructions, sec. 98, p. 85; Campbell v. Aunt Jemima Mills Co., 245 S.W. 620, 211 Mo.App. 670.

Clay C. Rogers, Joseph J. Kelly, Jr., and Mosman, Rogers, Bell & Field for respondent.

(1) Although the jury verdict was for the defendant, Frank Dean, plaintiff, did not make a submissible case upon the facts and the law and defendant's motion for a directed verdict filed at the close of all the evidence should have been sustained. Senseney v. Landay Real Estate Co., 131 S.W.2d 595, 345 Mo. 128, 18 Am. Jur. 549; 9 R.C.L. 1258; Bonanomi v. Purcell, 230 S.W. 120, 287 Mo. 436; Gray v. Levy, 48 S.W.2d 20, 226 Mo.App. 991; Rice v. Goodspeed Real Estate Co., 235 N.W. 814, 254 Mich. 49; Macon Savings Bank v. Geoghegan, 171 S.E. 853, 48 Ga.App. 1. (2) Instruction 7 correctly directed a verdict for defendant upon a specific finding of contributory negligence and a showing that such course of conduct directly and proximately contributed to cause plaintiff's injury. Barr v. Mo. Pac. Railroad Co., 37 S.W.2d 927; Stumpf v. Panhandle Eastern Pipe Line Co., 189 S.W.2d 223. (3) Plaintiff objected to the giving of Instruction 6 only on the basis there was no evidence that plaintiff opened the door before entering the elevator shaft. By failing to render any objection to the instruction on the grounds it did not state the requirement plaintiff must have failed to look, this objection to the instruction is deemed to be waived. Secs. 105, 122, Revised Code of Civil Procedure; Rule 3.21 Supreme Court of Missouri; Ford v. Louisville & N.R. Co., 196 S.W.2d 163; Millaway v. Brown, 197 S.W.2d 987.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for $ 15,000 damages for personal injuries alleged to have been occasioned by defendant's negligence. Verdict and judgment were for the defendant and plaintiff appealed.

Plaintiff was an employee of a tenant in the Keystone Building, 1320-22 Main Street, Kansas City. He was injured when he stepped into an open passenger elevator shaft at the lobby floor level and fell to the bottom of the shaft. The cause was submitted on alleged negligence in failing to keep the first floor lobby and elevator shaft reasonably lighted, in failing to provide any guards, locks, railings or other device in and about the elevator shaft and door, and in failing to warn plaintiff of the danger.

Error is assigned on the admission of evidence and the giving of instructions offered by defendant, but defendant, as respondent, contends the errors, if any, are wholly immaterial because plaintiff was guilty of contributory negligence as a matter of law. If no case was made for a jury, the errors complained of are immaterial. Bootee v. v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892. We shall state the evidence favorable to plaintiff and disregard defendant's evidence unless it aids the plaintiff's case.

Defendant owned and operated the Keystone Building as an office and business building, and rented parts of the building to different tenants. The Midland Radio and Television Schools, Inc., occupied the sixth floor and some other parts of the building. Defendant retained possession and control of a first floor common lobby, which was used by various tenants and their employees as a means of ingress and egress into the building. Defendant further exercised control of the elevator, paid the wages of the elevator operator and furnished each tenant a key to the building. The superintendent of the Midland Radio and Television School, by whom plaintiff was employed, furnished plaintiff a duplicate key. Defendant made no objection to tenants furnishing employees with duplicate keys. The elevator was regularly operated by defendant's employees from 7 a.m. to 6 p.m., but the elevator operator and janitor left the building at 6 p.m. and locked the outside door to the lobby. The elevator cage was left at street level, the lights in cage were turned off and the door into the shaft was closed. It was quite customary for instructors, who carried keys to the building, to go into the building on Saturdays and Sundays, or in the evening, and to operate the elevator. Defendant knew of and acquiesced in such practice. Plaintiff also knew that other instructors, army personnel and anyone, who had a key to the building, used the elevator at will. The elevator shaft was enclosed by a solid wall. A solid metal door covered the opening from the shaft into the lobby. The door was operated by a lever from inside the shaft and it could be locked by a movement of the lever. There was a small hole in the metal door, through which a small metal bar could be inserted and the lock or catch released, so that the door could be opened from the outside. Plaintiff had seen others use the bar to open the elevator door and he had used it himself on occasions. The door had to be manually opened or closed. When opened, the door moved to the right. There was no handle or knob on the outside of the door. The elevator cage could be operated when the lobby door was open and the door could be opened whether or not the elevator cage was at the floor level. The small metal bar was usually kept on the edge of the moulding, 5 feet from the floor, and near the elevator door. Plaintiff had operated the elevator on several occasions and knew that "the door apparently was worn . . . if you slammed the elevator door too hard it would bounce back open, . . . probably half way or sometimes three fourths of the way open." The lobby was provided with two ceiling lights, one of which was usually left burning, but they could be turned off or on by switches near the foot of the steps, some 5 feet back from the elevator door. A small light located within the elevator cage could be turned on or off from within the cage. Plaintiff knew where the switch was located and had turned it on and off. There was never any light in the elevator shaft. The elevator cage could be operated up or down by a lever handle within the cage.

The building faced east on the west side of Main Street and the lobby extended west for some 15 feet from the lobby entrance to the foot of the steps, beyond the elevator shaft. The elevator door faced north, and between the elevator shaft and the front door, on the south side of the lobby, was a cigar, soda and candy stand. A solid wall extended along the north side of the lobby, except for a glass door, opposite the elevator door and a little east. This door opened into a first floor store room on the north side of the building. There was no evidence that any light could or did come through this door. The lobby space used by persons going into or out of the building was about 6 feet wide, north and south.

On the night of April 10, 1942, plaintiff, an instructor in the Midland Radio and Television School, had attended a school dinner for the graduating students and their associate instructors at the President Hotel. Some 150 to 200 soldiers who were taking training, and some army personnel attended. Plaintiff drank no intoxicating liquor during the evening. He left the hotel about 10:00 p.m. and went to to his residence at 1601 Broadway, some 6 or 7 blocks away, to check some papers, but found he did not have "a master copy of a code test" and went back to the school to get it. On the way, he stopped at a cafe for some coffee and a sandwich and met a Mr. and Mrs. Scott. Mr. Scott was an instructor in the school and lived near plaintiff. The three left the cafe together about 11:30 p.m., intending to go by the school and then home. When they reached the Keystone Building, the outside door was locked and both lobby lights were off. On all other occasions when plaintiff had visited the building at night, the lights had been burning. He had had no occasion to use the lobby light switches and...