Hull v. Bishop Stoddard Cafeteria

CourtUnited States State Supreme Court of Iowa
Citation24 N.W.2d 364
Docket Number46738.
Decision Date17 September 1946

24 N.W.2d 364


No. 46738.

Supreme Court of Iowa

September 17, 1946

Rehearing Granted Dec. 20, 1946.

Appeal from District Court, Polk County; Tom K. Murrow, Judge.

BLISS, J., GARFIELD, C. J., and OLIVER, and MULRONEY, JJ., dissenting. [24 N.W.2d 365]

Raymond E. Hanke, of Des Moines, for appellant.

McLaughlin, Hise, Davis & Hyde, Frank W. Davis, Carr, Cox, Evans & Riley, and Ehbers English, all of Des Moines, for appellees.

MILLER, Justice.

On March 7, 1944, plaintiff was injured when he fell into the shaft of the freight elevator in the rear of the Garver Building, located at 711 Locust St., Des Moines, Ia. He fell from the first floor to the basement. The defendant Macon Realty Co. is the owner of the Garver Bldg. The defendant Bishop-Stoddard Cafeteria operates a cafeteria on the first floor of the building. The building had two elevators, one a regular passenger elevator and the other constructed and maintained as a freight elevator. The petition alleged that the freight elevator was commonly and frequently used as a means for carry passengers and by its use had become a passenger elevator within the meaning of the law. The gate of the freight elevator was hand operated and did not have the interlocking device required of passenger elevators by Section 104.4, Code 1946, Section 1684.1, Code 1939.

Plaintiff charged both defendants with negligence as follows: (1) failure to have a gate or guard across the opening at the time plaintiff fell into the shaft; (2) failure to have the entrance properly lighted; (3) failure to furnish an operator to keep the gate closed; (4) failure to have the interlocking door or gate required by Section 1684.1, Code 1939. At the close of plaintiff's evidence, the trial court directed a verdict in favor of the defendant Bishop-Stoddard Cafeteria. Thereafter, plaintiff asserted two additional grounds of negligence against The Macon Realty Co. alone, to-wit: (e) failure to have an automatic gate was in violation of Section 1678, Code 1939, Section 104.1 Code 1946; the closing of part of the gate of the elevator shaft by means of a door narrowed the width to some 2 1/2 or 3 feet and obscured the view of plaintiff so that his danger was not readily apparent.

The answers of the two defendants were in the nature of general denials and, in addition thereto, defendant Bishop-Stoddard Cafeteria, denied that it owned, maintained, operated or equipped the freight elevator and denied that the plaintiff's injury was caused by any negligence attributable to it.

Plaintiff testified that he had a contract with Bishops to collect their garbage, rubbish and trash seven days a week and paid Bishops $20 per month therefor; on the evening of March 7, 1944, he came to the rear of the premises to collect garbage sometime after 6 p. m.; he was in the [24 N.W.2d 366] habit of using the freight elevator to transport the garbage from the basement to the loading dock on the first floor; when he entered the rear door from the alley and approached the elevator, the gate, of open slats, was closed; he looked through the slats and saw that the elevator was not at the first floor but was at the basement; he reached over the top of the gate and pulled the cable that started the elevator and brought it up to the first floor; he raised the gate, stopped the elevator and adjusted the latch, stepped on the elevator, lowered it from the first floor and, as he descended, lowered the gate at the first floor; in the basement, he collected his cans of garbage and placed them near the elevator entrance convenient for loading them onto the elevator; Cleo Andrews (an employee of Bishops who had completed his day's work for Bishops) stepped on the elevator to go up and Hull joined him, stating that he would go to the first floor; Andrews stopped the elevator at the first floor, raised the gate and Hull got off walking directly to the north door; Hull saw no more of Andrews after he left the elevator; Hull moved his truck north of the dock and, in about five or six minutes, returned to the north or alley door which he opened; in so doing he almost collided with Mrs. Hill, an employee of Bishops who was through with her work and was about to leave through that door; she was buttoning her coat; he told her to bundle up; he noticed she had no stockings and remarked, 'You are like my daughter, you don't wear stockings'; as he passed her, the elevator gate was up; he observed that it was up as he entered the alley door and as he walked to the shaft; when he reached the opening he stood facing it and reached in with his left hand to take hold of the cable to start the car, stepped forward with his right foot thinking that the car was at that floor and fell to the bottom of the shaft. He testified that the light at the ceiling was lighted; it was an ordinary 60 watt Mazda lamp, gave sufficient light to see about the room; it reflected into the shaft somewhat--not much; he observed that the shaft was dark. There was a light in the top of the elevator which was not very bright but sufficient to light up the floor of the elevator.

Mrs. Hill testified as a witness for defendant Macon Realty Co. that she reached for the door as Hull came in; the gate to the elevator shaft was down; as Hull passed her walking toward the elevator he remarked that she should bundle up because it was cold out; he looked down and said she was like his daughter, 'no stockings'; when Hull got to the elevator shaft he lifted the gate and rested it on his shoulder; Mrs. Hill turned to leave, started to open the door, turned to say good night to Hull, but he was gone; she heard him yell as he fell.

Cleo Andrews testified for the Macon Realty Co. that, after Hull had arranged his garbage cans in the basement, Andrews operated the elevator to the first floor and let Hull off there to go for his truck; Andrews stopped the car and raised the gate to let Hull off; he last saw Hull walking toward the north door; Andrews remained on the elevator, started it upward and at the same time lowered the gate by the handle; as the elevator rose, he pushed the gate clear down with his foot, as was his custom; he stopped the elevator at the fifth floor, left it and closed the gate; three nights a week he worked at Benson's Club on the fifth floor; he remained there that evening for about 20 minutes; when he came out the elevator was at the fifth floor and the gate was closed; he got on the elevator and returned to the basement where he learned of plaintiff's injury.

There was other evidence of course. Some of it will be referred to later. As heretofore stated, the trial court directed a verdict for defendant Bishop-Stoddard Cafeteria at the close of plaintiff's evidence. When all the evidence was closed, the court directed a verdict for the Macon Realty Co. Plaintiff appeals to this court. While 14 assignments of error are asserted, they all relate to the rulings on the two motions for directed verdict which were sustained as aforesaid.

I. As above stated, the first specification of negligence was failure to have the entrance to the elevator shaft barricaded at the time Hull entered the shaft. That was a disputed question of fact. In considering the motion for directed verdict, the [24 N.W.2d 367] jury was warranted in finding from Hull's testimony that the gate was up when he entered the alley door to use the elevator. But was either defendant shown to be responsible for the gate being up?

If the jury should have found that Cleo Andrews, notwithstanding his testimony to the contrary, had left the gate open, his act was not the act of either defendant. He was at that time acting for Benson's Club, not for either defendant. If someone else left the gate open there is nothing but speculation or conjecture to support a finding that it was one of the employees of either defendant. And the interval of five or six minutes was too short to impart notice to either defendant that the gate was left up. The case is squarely within the rule applied by this court in the case of Work v. Des Moines Coliseum Co., Iowa, 207 N.W. 679, wherein an invitee fell through an open trap door and sued both the owner of the premises and a tenant (as here) and this court held that the trial court properly directed a verdict as to each defendant, stating as follows:

'The trapdoor was not a nuisance. Whitmore v. Orono Pulp & Paper Co., 91 Me. 297, 39 A. 1032, 40 L.R.A. 377, 64 Am.St.Rep. 229; Shew v. Hartnett, 121 Wash. 1, 208 P. 60. The doctrine of res ipsa loquitur has no application, especially as the trapdoor was not wholly under the control of the defendant. 29 Cyc. 590; Sullivan v. Minneapolis Street Railway Co., 161 Minn. 45, 200 N.W. 922; Scellars v. Universal Service, 68 Cal.App. 252, 228 P. 879.

'It would be the merest speculation to undertake to say who opened the trapdoor, or who permitted it to remain open, or how long it had been open, or that the employes of the defendants knew that it was left open for such time as to charge the defendants with failure to exercise ordinary care in not closing it. The record does not sustain the charge of negligence against either defendant.'

Obviously, the elevator gate was not a nuisance when closed and became such only when left open. Neither Bishops nor Macon Realty Co. would be liable to appellant unless it were shown that some one acting for them left the gate open, or if some one else did so, that it was left in that condition for such a period as to impart notice of the dangerous condition. Five or six minutes was not a long enough period to impart such notice. Hence, specification one, standing alone, is not sufficient to impose liability on either defendant under this record.

II. The second specification of negligence was failure to have the shaft lighted. Hull testified that the anteroom where the elevator was situated, a room 9 X 9 feet (excluding the...

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3 cases
  • Hull v. Cafeteria, 46738.
    • United States
    • United States State Supreme Court of Iowa
    • December 20, 1946
    ...24 N.W.2d 364HULLv.BISHOP-STODDARD CAFETERIA et al.No. 46738.Supreme Court of Iowa.Sept. 17, 1946.Rehearing Granted Dec. 20, Appeal from District Court, Polk County; Tom K. Murrow, Judge. Action at law to recover damages for injuries received from a fall into an elevator shaft. The trial co......
  • Skaff v. Godbersen, 46889.
    • United States
    • United States State Supreme Court of Iowa
    • December 20, 1946
    ...The plaintiff's husband and the defendant were the only witnesses. Many matters are left to inference. The fact that the Byse-Godbersen [24 N.W.2d 364]lease was on record when the plaintiff purchased the Byse equipment and building and rented the property is not conclusive proof that it had......
  • Skaff v. Godbersen, 46889.
    • United States
    • United States State Supreme Court of Iowa
    • October 15, 1946
    ...The plaintiff's husband and the defendant were the only witnesses. Many matters are left to inference. The fact that the Byse-Godbersen [24 N.W.2d 364.] lease was on record when the plaintiff purchased the Byse equipment and building and rented the property is not conclusive proof that it h......

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