Gray v. Levy

• Decision Date: 29 February 1932
• Parties: L. F. GRAY, RESPONDENT, v. BERTHA M. LEVY, APPELLANT
• Court: Kansas Court of Appeals

48 S.W.2d 20

226 Mo.App. 991

L. F. GRAY, RESPONDENT, v. BERTHA M. LEVY, APPELLANT

Court of Appeals of Missouri, Kansas City

February 29, 1932

Appeal from the Circuit Court of Jackson County.--Hon. Thos. J Seehorn, Judge.

REVERSED.

Judgment reversed.

Kennard & Gresham and W. W. McCanles for respondent.

Hackney & Welch for appellant.

BOYER C. Campbell, C., concurs. Trimble, P. J., and Arnold, J concur; Bland, J., concurs in result.

OPINION

BOYER, C.

Action ex delicto. The parties will be referred to as plaintiff and defendant as designated below. Plaintiff sued defendant and her husband, Leo Levy, to recover damage on account of personal injury received by him when he fell into an elevator shaft from the lobby of the Glennon Hotel in Kansas City, then operated by defendant. The pleadings are unquestioned. The petition alleged among other acts of negligence that defendants negligently "permitted the door leading into said elevator to be open when the elevator was not at said floor level, all of which was reasonably likely to cause plaintiff and others to be misled to step into said elevator shaft in an effort to take passage on the elevator;" and that defendants were further negligent in that "they had said door to said elevator open when said elevator was not at said floor level and failed to have any light or reasonably sufficient lights showing the outlines of said elevator shaft to enable plaintiff to determine whether or not said elevator was at said floor level." The substance of these two charges of negligence was submitted to the jury in an instruction for plaintiff requiring a finding thereon and that plaintiff was injured as a direct result thereof while in the exercise of ordinary care.

The separate answer of Bertha M. Levy was a general denial and a sufficient plea of contributory negligence. It alleged that plaintiff's injuries were caused solely by his own negligence in failing to use ordinary care and that he negligently stepped into said elevator shaft without looking to see if the elevator was there and without first ascertaining whether he could enter said elevator shaft in safety, and that plaintiff knew or by the exercise of reasonable care could have known that the elevator was not even with the floor and that he could not enter the shaft with safety.

At the conclusion of the evidence offered by both sides, defendants requested peremptory instructions in the nature of demurrers to the evidence. They were refused and the case was submitted to the jury on instructions given at the request of both sides. The verdict was for the plaintiff and against both defendants in the sum of $ 4500. Judgment followed and defendant Bertha M. Levy alone perfected her appeal. The points presented in the assignment and brief are (1) that the court erred in failing to sustain the demurrer at the close of all the evidence, and (2) that the court erred in giving plaintiff's instruction No. 1. Defendant asserts that the demurrer should have been sustained because under the evidence plaintiff was guilty of contributory negligence as a matter of law. Plaintiff contends to the contrary, from which arises the prime question for determination in this case. A search for the facts and permissible inferences favorable to the plaintiff is required. We have duly examined the abstract and state the pertinent facts as follows:

Plaintiff was injured March 7, 1929. Then and prior thereto defendant Bertha M. Levy owned the lease and the furniture of the Glennon Hotel, and at the locus in quo conducted a public hostelry. The entrance from the south led to a spacious lobby about forty feet long and twenty-eight feet wide. Along the west wall and extending to the north end of the lobby were located consecutively the desk or hotel office, switchboard, mail box, elevator, fountain, check room, and private office. The main ceiling was about twenty feet high, but there was a messanine nine feet wide on each side. There were numerous light fixtures suspended from the main ceiling and in the ceiling under the messanine. One was located about a foot above and two feet away from the top of the elevator door. This door was built in three upright sections, each two feet wide. The section on the north, or right-hand side of one looking at it, was stationary; the other two were movable. They rested on bearings and could be rolled back behind the stationary part. This was the entrance through which one would pass to get on the elevator, and when the door was completely open it was four feet wide. The sections of the door held panels of glass with meshes of wire. The glass extended from near the top of the frame to within eighteen inches of the floor. The elevator carriage always had lights in it and when it stopped at the lobby floor it was visible from the lobby, whether the doors were closed or open. There was no light maintained in the elevator shaft below the lobby floor.

On the day named, plaintiff was, and for two weeks, had been a guest at the hotel. He occupied a room on the fourth floor and was accustomed to use the elevator several times each day. It was operated by different bell boys, a number of whom were employed by defendant. They were all experienced operators and would alternate every two or four hours in running the elevator. When the elevator would ascend from the first floor the boy operating it would push the movable part of the door to close the entrance; the south panel of the door was equipped with a latch which would catch and hold the door closed when in working order. The latch was out of order and sometimes failed to catch thereby leaving the door unfastened or partly open. When the latch did not hold the door would sometimes rebound a variable distance, depending upon the degree of force applied when it was pushed by the operator. Such in brief and general outline were the facts, conditions, and circumstances prevailing at the hotel on the day and at the time of plaintiff's injury. Other specific facts relevant to the issue of contributory negligence will be given in detail.

Plaintiff testified that he was fifty-three years of age, five feet, eight inches tall, and weighed 185 pounds; that his room was on the fourth floor of the hotel and that he had been staying there about two weeks; that the elevator was located north of the desk on the west side. He supposed the lobby was from sixteen to twenty feet wide and from thirty-five to forty feet long; that he was accustomed to use the elevator; he judged the door when open was about four feet wide; he had never stopped to measure it and was only guessing. He thought the elevator had two doors; he thought they opened back to the north and supposed that the elevator was customarily operated by the bell boys; that they were dressed in uniforms bearing the name of the hotel; the operator generally stood back to the right and generally kept the door open if he was waiting to take passengers up. Plaintiff further stated that he went into the hotel on the evening of March 7th, about a quarter past six. He was a cow buyer and had been out in the country looking for cows; he had been in previously and went out to get a grip which he had left in his car and which contained instruments, or tools as he described them, which were used in the pursuit of his business, and in describing what he did upon his return, said: "I was coming along carrying my grip. I walked back, I saw the elevator boy standing there where he stood many times. I mean east; right to the corner of the elevator; east side. I walked in there and he was standing there looking like he was looking at the elevator, only standing there with the elevator door open, and I just walked up and went right into it, and I fell and my foot hit this here door, probably did, probably made a racket, and when I stepped in of course I naturally grabbed for something, you would be bound to grab for something, but I never got hold on the door and I went to the bottom." He did not know how far he fell, but supposed sixteen or eighteen feet; that he could easily be wrong; it was the length of the basement and then down four or five feet further; he had his grip in his left hand; when he stepped in the elevator shaft the door was open about two feet. "I would not say exactly, because it was open just about what it was when a person walked into it." He had gone in many times before and did not notice any difference; the elevator was not there; an elevator boy stood right there close in the lobby; there was no light down in the elevator shaft. After he fell he was assisted to his room and was later removed to the hospital. He testified to the nature of his injuries, treatment thereof, and the time spent in the hospital. After he had been in the hospital about seven days a girl and two men came to see him; he was asked questions and made answers; he did not send for them; he did not sign anything and they did not leave a copy of what they claimed he said.

On cross-examination, plaintiff said that he answered a few questions when the parties called to see him at the hospital that the girl had a paper and he supposed she was writing; he did not know what they asked him and he didn't know what they got on the paper; he supposed he answered the questions truthfully; that he was trying to; that his pain and suffering had nothing to do with answering their questions truthfully; one of his attorneys had already been to see him; that the bell boys all looked alike; there were five or six of them; that when he waked back to the elevator the bell boy was standing right by the elevator door looking out the lobby window; he seemed to be looking toward the street south; "I don't think he ever saw me." He later said: "I think he was looking at...