Fox v. Missouri Jobbing House

• Decision Date: 05 November 1930
• Docket Number: No. 21192.,21192.
• Citation: 32 S.W.2d 130
• Parties: FOX v. MISSOURI JOBBING HOUSE et al.
• Court: Missouri Court of Appeals

32 S.W.2d 130

FOX v. MISSOURI JOBBING HOUSE et al.

No. 21192.

St. Louis Court of Appeals. Missouri.

November 5, 1930.

Rehearing Denied November 21, 1930.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Fred Fox against the Missouri Jobbing House, a corporation, and another. From judgment for plaintiff against the named defendant, it appeals.

Affirmed.

Dubinsky, Duggan & Stein, of St. Louis, for appellant.

Joseph A. Rogers, J. Edward Gragg, and Wilbur C. Schwartz, all of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. The petition alleges that on August 31, 1926, the defendant Missouri Jobbing House was engaged in the business of buying and selling merchandise, and in the conduct of said business operated a store and merchandising establishment in a six-story building commonly known as 814 Lucas avenue, in the city of St. Louis; that defendant Russack was the owner, and defendant Missouri Jobbing House was the lessee, of said building; that on said date defendant Missouri Jobbing House invited plaintiff into said building for the purpose of removing certain rubbish and waste material of said defendant, from the basement of said building, when plaintiff fell into and down an elevator shaft, from the first floor to the basement of said building, and thereby sustained the injuries for which he sues; that plaintiff's injuries were received as the proximate result of the negligence of the defendants, and each of them, as follows: (1) That the elevator shaft was dangerous by reason of the fact that the entrance to the shaft from the first floor was not provided with a semiautomatic gate properly equipped with a device to prevent the gate from being opened until the platform arrived at the floor landing, and which would cause the gate to close automatically as the car left the floor landing, or with an interlocking device which would prevent the moving of the car unless all shaft doors or gates were closed, or with a mechanical door closing device which would prevent the movement of the car when the gates were not closed, and which would prevent the opening of the gates when the car was not at the floor landing, as required by Ordinance 34950 of said city; (2) that defendants negligently failed to warn plaintiff of the dangerous and unsafe character of said elevator shaft entrance; (3) that defendants failed to adequately light said entrance to said elevator shaft, but on the contrary kept said place in semi darkness; (4) that although defendant Missouri Jobbing House invited plaintiff into its said building, and to use said elevator and shaft, yet said defendant negligently failed to furnish plaintiff with a place of reasonable safety in entering said elevator and shaft; (5) that defendants negligently failed to use reasonable care to make the entrance way to said elevator shaft reasonably safe for persons using the same, or walking near or about said entrance; and (6) that defendants negligently allowed and permitted the said entrance to said elevator shaft to be and remain open and unguarded, and in a condition of semidarkness.

The petition contains other specifications of negligence, which, along with the first specification, were withdrawn from the consideration of the jury by instructions given at the instance of the defendant Missouri Jobbing House.

The answer of defendant Missouri Jobbing House is a general denial, coupled with a plea of contributory negligence.

The cause was tried to a jury. The court gave for defendant Russack an instruction in the nature of a demurrer to the evidence. The jury returned a verdict in favor of plaintiff against defendant Missouri Jobbing House for $3,500, and judgment was given accordingly. Defendant Missouri Jobbing House appeals.

Appellant occupied and conducted its business in a building at 814 Lucas avenue, which had six floors and a basement. On the first floor there was a partition and south of the partition there was an open space. Adjoining this space on the east wall of the building there was an elevator shaft running from the basement to the sixth floor. The cage or car of the elevator was operated by hand with a wire cable or rope. Each floor had an elevator opening and gates which were moved up and down by hand. The gates had no automatic devices attached to them. The distance from the first floor to the basement was slightly over nine feet. The elevator was operated by appellant's employees. No particular person was employed to operate it exclusively. So far as the evidence shows, this was the only elevator in the building.

The plaintiff testified that he owned a motortruck and was engaged in the hauling business; that he was working for himself; that he had a contract with appellant to haul rubbish away from appellant's place of business, at 50 cents per week; that he went to appellant's place of business once a week to haul away the rubbish; that he had hauled the rubbish about five times prior to the accident which caused his injury; that he went there on the morning of the accident at about 9 o'clock; that it was a cloudy day; that it had been raining; that he had an arrangement to meet appellant's porter the first thing in the morning to get the rubbish, but that it was raining and he left home as soon as it stopped raining; that it was still cloudy; that when he went there that morning he saw somebody in the front of the store who told him to go to the back, that the porter was there; that he went to the back and saw the porter; that he and the porter went down into the basement on the elevator; that he had not before that day gone into the building to get the rubbish; that it was always on the sidewalk; that it was always left on the sidewalk by the door; that he hauled the rubbish to a dump located at Grand and Chouteau avenues; that he had never been on the elevator or seen it in operation before the day of the accident; that when he and the porter went down in the basement the porter operated the elevator; that there were four boxes of rubbish in the basement; that they loaded one box of rubbish on the elevator and took it to the first floor; that they dragged it off the elevator and dragged it up to the front door onto the sidewalk; that the porter operated the elevator from the basement to the first floor; that both he and the porter rode in the elevator, and when they got to the first floor they both dragged the box out to the sidewalk; that when they were in the basement some one pulled the elevator up and they waited until they got through with it upstairs and it came back; that they waited quite awhile while they were using it upstairs; that when they got the box out to the sidewalk they set it by the building; that they left it on the sidewalk and started back to get some more; that when they got into the building the appellant's president was there, and made some statement to him about getting the rubbish hauled for nothing; that after talking to him he said to go ahead and get the other rubbish; that he and the porter, who was standing there, started back to the elevator; that he was watching the porter until he got out of sight; that the porter walked right back and was going along in front of him when he turned in—turned east—toward the front of the elevator; that he did not see the porter any more after that; that he turned and went out of sight; that he thought he went into the elevator; that the porter was about twenty-five or thirty feet in front of him when he saw him turn in toward the front of the elevator; that when he got to the elevator the gate was open; that he saw something shiny in the elevator shaft and thought it was the elevator and thought the porter was inside waiting for him, and that he walked and stepped where he saw the shiny piece, which he thought was the plate on the floor of the elevator, and fell through to the basement; that before he started walking back to the elevator, after talking to the superintendent, nobody gave him any warning or notified him that the elevator was not at the first floor; that he did not see any lights around the elevator; that the store was rather dark inside; that there was no light in the elevator, and no light in the elevator shaft; that he did not see any light on the first floor; that there was light enough to walk by; that he wasn't groping in the dark; that it was not so dark that he couldn't...