Katz v. North Kansas City Development Co.

• Decision Date: 11 February 1924
• Docket Number: No. 14929.,14929.
• Citation: 258 S.W. 752,215 Mo. App. 662
• Parties: KATZ v. NORTH KANSAS CITY DEVELOPMENT CO.
• Court: Missouri Court of Appeals

258 S.W. 752

215 Mo. App. 662

KATZ v. NORTH KANSAS CITY DEVELOPMENT CO.

No. 14929.

Kansas City Court of Appeals. Missouri.

February 11, 1924.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Ethel Katz against the North Kansas City Development Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Cyrus Crane and Kenneth McC. De Weese, both of Kansas City, for appellant.

Gamble, Trusty & Pugh, of Kansas City, for respondent.

TRIMBLE, P. J.

Defendant owns and operates a warehouse known as the Rumley Building in North Kansas City. Plaintiff's husband fell down an elevator shaft therein and was killed. She brought this action to recover damages alleging that his death was caused by defendant's negligence. The jury returned a verdict in plaintiff's favor for $3,000, and defendant has appealed.

The petition charged that—

(a) "Although the elevator opening or shaft through which the deceased fell was on the first floor and in the south end of the building and about midway from the east wall to the west wall and where customers, including the plaintiff, would pass when entering or leaving said building, yet the defendant carelessly and negligently failed to have said place in and around said elevator reasonably sufficiently lighted, and negligently left or permitted the entrance to said elevator to be opened and unguarded, and by reason thereof it was not reasonably safe."

(b) "Although the opening in said elevator shaft was along and near other openings or doors along the south wall of said building and although the interior of the shaft of said elevator was inclosed and dark, and although there was a regular passage way along said opening which defendant allowed, invited and permitted its customers and employés to use said elevator and to pass along said place and knew that such persons passed in dangerous proximity to said elevator opening, and defendant maintained metal doors at said elevator opening for the purpose of closing and guarding the same, yet the defendant carelessly and negligently caused or allowed the doors to said elevator opening to be open and the same to be unguarded when it knew or by the exercise of ordinary care might have known that said place was not reasonably safe when said doors were open and said shaft unguarded."

(c) "Although it is the usual and general custom to have such elevator openings barricaded or equipped with doors and the doors thereof closed when the elevator is not at such opening, yet the defendant carelessly and negligently caused or allowed the doors to said elevator to be open at the first floor thereof at a time when the plaintiff's deceased fell therein although the elevator had been moved and was higher up in the shaft when it knew, or by the exercise of ordinary care could have known that by reason of such facts said place was not reasonably safe."

(d) "Although said opening was where customers would pass and was near other openings or doors and said place was not sufficiently lighted and the entrance thereof was open and not barricaded, yet the defendant negligently failed to have any light or warning or sign to indicate that said opening was into an elevator shaft and by reason thereof the same was dangerous and not reasonably safe."

(e) "Although the defendant allowed and invited its customers to use said elevator in going from floor to floor and said customers would use said elevator by getting thereon and setting the same in motion by pulling on the cable, yet the defendant had the elevator shaft painted a dark or black color, and failed to maintain any light in said shaft and by reason thereof it was difficult to discover the absence of said elevator in the floor where you desired to enter and by reason thereof the place was dangerous and not reasonably safe."

The answer was a general denial coupled with a plea of contributory negligence in that plaintiff's husband—

"knew, or by the exercise of ordinary care and prudence on his part could have ascertained, whether or not the elevator was on the first floor of the building before stepping through the door to the elevator shaft, and was careless in not making any such attempt to do so, without first ascertaining or attempting to ascertain whether the elevator was there or not, and in failing to make such attempt was negligent as a matter of law."

The warehouse is a four-story building 286 feet long, north and south, by 114 feet wide, east and west. Heavy freight and automobiles were stored therein. The office, stairway, entrance doors, and elevators are in the rear or south end of the building. The office, located in the southeast corner, occupied 22 feet and 9 inches of the width of the building. West of the office was a space 22½ feet in width, and opening into this space through the south wall of the building was a large entrance door. Immediately west of the above 22½-foot space, the freight elevator, passenger elevator, and stairway occupied another 22½ feet of the width of the building, and immediately west of the freight elevator was a space of 22½ feet used for a driveway, and opening into this driveway through the south wall of the building was another large entrance door. The passenger elevator is north of the stairway, the latter being near the south wall of the building, and west of the passenger elevator and stairway, forming the west boundary of both, is a wall, and immediately west of this wall is the freight elevator.

As the street was on the west side of the building, many persons, and perhaps most of them, entering the building from the dock would go through the large entrance west of the freight elevator, pass north to the north side thereof, and then turn east along the north sides of the two elevators and go to the office, or, if desiring to use either the passenger elevator or the stairway, would turn and go south along east of the passenger elevator and either enter the elevator or continue on a very short distance south to the stairway.

Outside and south of the south wall of the building is a large loading dock on which automobiles or property for storage could be driven or loaded and then taken into the building through the large door, and, on being placed on the freight elevator, could be taken to any floor of the warehouse desired.

Each elevator had gates or doors to its entrance and these were so constructed as to divide into two parts, an upper and lower half. They open at the dividing line between the two halves, the lower half descending until its upper edge was flush with the floor, and the upper half ascending until it was out of the way. When the gate closed, the two halves came together and formed a solid wall, but sometimes in closing they rebounded a little, leaving a horizontal aperture varying from two to six inches or more wide between the two halves; but, as this aperture was half way up the entire height of the door, the opening thus left did not prevent the door from guarding the entrance to the elevator shaft.

Defendant maintained one man in the warehouse who attended to the work of deciding where freight and automobiles should be stored and of operating the elevators in the building. His name was Storms. Patrons desiring to store freight or automobiles would go into the office to see Storms and get directions from him as to where their property was to be placed, and, accompanied by him, would take the stuff to the designated parts of the building by means of the freight elevator.

For about two years prior to the injury, plaintiff's husband, with his partner, Dolgenow, had been accustomed to, at least once a month and oftener, take automobiles from their garage in Kansas City to this warehouse and store them there. They were, therefore, familiar with the premises. Somewhere around 3 or 4 o'clock in the afternoon of December 30, 1919, the two men, Dolgenow and plaintiff's husband, Katz, each drove a Ford car onto the dock for the purpose of storing them in the warehouse. Dolgenow got out of his car and went into the office, through a door in the south wall opening directly into the office, to inquire for Storms. He learned in some way that Storms was on the second or third floor, but would be down in five or ten minutes. Dolgenow went back to the dock, where plaintiff's husband and several other persons were waiting. Dolgenow reported what he had learned and when Storms would be down, whereupon Katz said, "It will be too long to wait for him. I will go and look for him."

Katz then went into the building through the large entrance door west of the freight elevator. No one knows what he did therein, and there was no eyewitness to the accident. It was "but a few minutes" after Katz entered the building until those waiting on the dock heard a cry that some one had fallen into the elevator shaft. They all ran into the building through the entrance used by Katz.

Dolgenow says that he first looked at the freight elevator doors, but they were closed and that he ran on around to the passenger elevator; that the elevator was not there, but was somewhere on a floor above; that the doors to the elevator were open "all the way"; that it was a gloomy day and in the building "it wasn't dark like at night but it was dark." It was dark in the elevator shaft so that one couldn't see a thing looking into the shaft. He said that when he was trying to see he meant they were standing at the first floor looking down into the shaft; that a call was made for matches,. and they ran down into the basement, but without matches they could not see into the elevator pit, the bottom of which was three or four feet below the basement floor; that when they got matches and struck them they found Katz lying on the bottom of the passenger elevator pit; that they got him out and a doctor was sent for, but he pronounced the case hopeless, and Katz died shortly after and without making any statement.

On cross-examination...