Hull v. Bishop-Stoddard Cafeteria

• Decision Date: 11 March 1946
• Docket Number: 46738.
• Parties: HULL v. BISHOP-STODDARD CAFETERIA et al.
• Court: Iowa Supreme Court

26 N.W.2d 429

238 Iowa 650

HULL v. BISHOP-STODDARD CAFETERIA et al.

No. 46738.

Supreme Court of Iowa

March 11, 1946

Rehearing Denied June 21, 1947.

Appeal from District Court, Polk County; Tom K. Murrow Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Raymond E. Hanke and Putnam, Putnam & Putnam, all of Des Moines, for appellant.

Frank W. Davis and Evans, Riley, English & Jones, all of Des Moines, for appellees.

BLISS Justice.

On September 17, 1946, an affirming opinion (24 N.W.2d 364) was rendered by this court. A rehearing was granted to the plaintiff and the cause was resubmitted. The above-noted opinion is withdrawn and is superseded by this one.

On March 7, 1944, plaintiff was injured by a fall into the open shaft of an elevator, from the first floor to the bottom of the shaft in the basement of the Garver Building, a six-story business structure, in downtown Des Moines, owned by the defendant, Macon Realty Company, part of which was leased and used as a restaurant by the codefendant, who will be referred to as 'Bishops.' The building has a south frontage of 80 feet on Locust street, abuts on the north-south alley on the west, and on the east-west alley on the north. In the northwest corner of the building, in the angle formed by said alleys, is an elevator shaft extending from the basement floor to the roof, and servicing the basement, the sixth floor, and all floors between. The shaft is seven feet north and south and seven and one-half feet east and west. On the first floor, immediately east of the shaft and abutting thereon, is, what will be referred to as the entry room. It is seven feet north and south and nine feet east and west. A door on the east side and one on the south side affords access to the dining room of Bishops. Access to the east-west alley on the north is through a five-foot door in two parts of equal width hinged on the casings and swinging inward from the perpendicular center of the opening. The west casing is approximately three feet from the northeast corner of the shaft, and the east casing is about a foot from the east wall of the entry room. The top of the threshold of this door is about eighteen inches above the entry-room floor, and two steps connect them.

The brick walls of the building form the west wall, and, apparently, the north wall of the elevator shaft. The east and south walls are made of lumber. The entrance or doorway to the shaft is on its east side in the first floor entry. That is the doorway through which plaintiff fell, and it is the only one particularly involved. There are no doors or barriers of any kind on the elevator itself. The gates and doors which close the openings in the shaft are all a part of the east wall of the shaft and are fastened to it. At the opening on the first floor, is a double door, or rather two doors of the same size--3' X 6'6"'--hinged to the shaft on their back edges and meeting flush in the middle of the opening. The north one of these doors was not used and was nailed shut. That was its condition on the evening of the injury. Behind or west of these doors and closing the opening in the east wall of the shaft when down, a slat gate was suspended. It was about six feet wide and five and one-half feet high, and was made of upright wooden slats bolted to cross-pieces at the top, middle, and bottom. The slats were three inches wide and were separated by three-inch openings. It operated like a window, with weighted ropes run over pulleys at the top corners, to aid in raising or lowering the gate and to hold it in position when raised. It was not operated by electricity or by any power other than man-power. There was a handle at the bottom of the gate on each side to aid in the application of this power. When the gate was completely down the bottom of it rested on the floor of the room. It could be raised or lowered by any person in the elevator, or by any one on the floor. There was no connection or relation between the operating of the gate and the operating of the elevator. The operating of each was independent of the other. Whether the gate was up or down, or the opening in the shaft where it was suspended was open or closed, had no effect on the movement of the elevator. The elevator could be moved up or down between any or all of the floors, regardless of the position of any or all of the gates on any or all of the floors, or whether they were up or down. And conversely, any gate on any floor could be raised or lowered at any time regardless of whether the elevator was moving or stationary, or where located. There were no gates or doors closing the openings in the shaft or the elevator which were automatically operated or locked, by any electrical or mechanical devices, which would prevent the opening of a gate or door when the elevator was not at the floor, or would permit the elevator to be moved from a floor when a door was open. To express it more simply there was no mechanical connection between the elevator and any gate.

There were no windows in the first floor entry room. The only artificial light was a 60 watt electric bulb, without a reflector, a little east of the center of and against an eight-foot ceiling. Five photographs of this room and the elevator and its gates and doors were introduced by defendants. These exhibits and the testimony show the entry room was also a place for keeping scrubbing equipment of various kinds and barrels and containers of rubbish. Its walls and ceiling were painted a yellowish drab color. The floor of the room and of the elevator had a dark, grimy appearance and looked much alike, and the room as a whole, the doors, gate, and contents were much soiled. For a better understanding of the facts, we show here a reproduction of defendants' Exhibit 1, a photograph of a part of the entry room showing the elevator entrance with the gate down. On the gate there was, on March 7, 1944, and had been for a long time, a notice, plainly lettered as follows:

DANGER

This Gate must NOT be left open

When the gate was raised the sign could not be seen. The west end of the steps to the north door may be seen in the lower righthand corner of the photograph.

Exhibit 1

RPT.CC.1947104470.00010

(Image Omitted)

The elevator was approximately 7' X 7' X 7'. It had a board floor and a heavy wire mesh overhead in which was an incandescent electric light globe. In the west brick wall of the shaft was a 7' X 7' opening closed by an up-and-down sliding door, which, with a very narrow dock, was used for the transfer of boxes of merchandise and heavier articles to and from the elevator.

Bishops had a lease upon a part of the first floor--the west 42', which was widened to 63'6"' at the rear. The lease also covered the corresponding part of the basement. In it were the kitchens, pantry, storeroom, bakeries, lockers, office, and private dining rooms of Bishops. The lease did not cover the elevator, or shaft, or any part of the equipment, gates, doors, etc., of either. Neither did it cover the entry room on the first floor, or the corresponding space in the basement. The lease did cover a part of the fourth floor, which Bishops used for the storage of merchandise. There were other tenants occupying other parts and floors of the building--a nightclub or two, a Sports Arcade, a Health Farm. Over against the east wall of the Garver building, about forty feet east of the leasehold of Bishops, and about fifty feet north of Locust street, was a passenger elevator which serviced the first and upper floors of the building, but terminated a foot and a half above the basement floor.

The lease between Bishops and the Macon Realty Company, which was in force on March 7, 1944, was for a term of eleven years from January 1, 1936. Counting earlier leases Bishops had been a tenant of the property for over eighteen years. Under the lease last mentioned, the Macon Realty Company received a graduated monthly rental plus ten percent of the annual receipts of Bishops exceeding a specified sum.

The Macon Realty Co., as owner, retained the custody and control of the elevator shaft, in the northwest corner of the building, and also the elevator, the gates, doors, and all appurtenant equipment, and the entry rooms for the common use of itself and all tenants, including Bishops. The latter used this elevator equipment and service in the operation of its business and the conduct thereof between the different parts of its leasehold, and in the conveyance of merchandise, waste products, etc., and also of personnel. Any tenant or the employees or patrons thereof, or persons doing business with the tenants, were at liberty to, and did use the elevator, and operate it personally. While there was no evidence that any one was employed solely to operate the elevator, Mr. Park, Bishops' Manager at this place for over eighteen years, testified that an operator was furnished 'at times, yes. Yes. Prior to March 7th (1944) you could call for the elevator if it happened to be on some floor on which you were not, and the fireman would usually or ordinarily come up and get you and run you down. He was the man in charge of that elevator. Q. So that it may be operated by an operator there furnished by the building or it may be operated by folks that wanted to use it? A. That is right, yes.' The witness had seen the tenants and others using the elevator with and without freight, although he did not always know what the particular business of each was. Under the lease the lessor furnished heat for Bishops.

The elevator was raised and lowered by cables operated by electricity. No pressure buttons were used. In the southeast corner of the shaft hung a cable which was the means of starting the elevator. If one operating the...