Keeter v. Devoe & Raynolds

• Decision Date: 23 April 1936
• Docket Number: 33629
• Citation: 93 S.W.2d 677,338 Mo. 978
• Parties: Edward Keeter, Appellant, v. Devoe & Raynolds, Inc., Direct Stores Company, Corporations, and Roy E. Harrison
• Court: Missouri Supreme Court

93 S.W.2d 677

338 Mo. 978

Edward Keeter, Appellant, v. Devoe & Raynolds, Inc., Direct Stores Company, Corporations, and Roy E. Harrison

No. 33629

Supreme Court of Missouri

April 23, 1936

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed and remanded.

Kennard & Gresham, F. M. Kennard and Walter J. Gresham for appellant.

(1) The court erred in sustaining the motion for new trial. (a) Defendants' negligence was for the jury. The method of operation was negligent. It was shown that defendants and other tenants participated in using the freight elevator indiscriminately, that the car was likely to be moved at any time by anyone who wanted to use it, and that when the car left the basement landing the shaft was left unprotected. McCloskey v. Salveter, 317 Mo. 1156, 298 S.W. 226; Lauder v. Hornbeck, 74 Okla. 239; Baldwin v Hanley, 202 Mo.App. 650, 216 S.W. 998; Katz v Development Co., 223 Mo.App. 607, 14 S.W.2d 701. It was defendants' duty to warn plaintiff. Plaintiff was rightfully on the premises performing duties in which defendants had an interest. They furnished the place of work and the instrumentality. The danger was known to them and unknown to plaintiff. Kelso v. Const. Co., 85 S.W.2d 527; Neal v. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; Rose v. Tel. Co., 328 Mo. 1009, 43 S.W.2d 562; Jewell v. Sturges, 245 Mo. 720, 151 S.W. 966; Clark v. Ry. Co., 234 Mo. 396, 137 S.W. 583; Clark v. Foundry Co., 234 Mo. 436, 137 S.W. 577; Cool v. Rohrback, 21 S.W.2d 919; Shouse v. Dublinsky, 38 S.W.2d 530; Aiken v. Scraper Co., 197 Mo.App. 673, 198 S.W. 1139; Burner v. Higman & Skinner, 127 Iowa 580, 103 N.W. 802; Campbell v. Ry. Co., 175 Mo. 161, 75 S.W. 86; Brum v. Ry. Co., 335 Mo. 876, 74 S.W.2d 566; Northern v. Fisheries Co., 320 Mo. 1011, 8 S.W.2d 982; Sec. 1663, R. S. 1929. (b) Contributory negligence was for the jury. Plaintiff had no warning that the elevator might be moved and the shaft left open and unprotected. In his experience, an automatic gate dropped down when the car left the landing. He was giving his attention to his work and watching where he was going. Crawford v. Stockyards, 215 Mo. 394, 114 S.W. 1057; Kennedy v. Phillips, 5 S.W.2d 33; Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962; State v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Unrein v. Hide Co., 295 Mo. 353, 244 S.W. 924; 20 R. C. L. 117. (c) The verdict is not excessive. The amount awarded is supported by the facts and does not justify ordering a new trial. Cole v. Railroad Co., 332 Mo. 999, 61 S.W.2d 344; Margulis v. Stamping Co., 324 Mo. 420, 23 S.W.2d 1049; Cotton v. Ship-By-Truck Co., 85 S.W.2d 80; Hoelzel v. Ry. Co., 85 S.W.2d 126; Crews v. Storage Co., 8 S.W.2d 624; Dorman v. Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Smith v. Ry. Co., 279 Mo. 173, 213 S.W. 481; Roach v. Rys. Co., 228 S.W. 520; Clark v. Ry. Co., 318 Mo. 453, 300 S.W. 758; Duffy v. Rys. Co., 217 S.W. 883.

William S. Hogsett, Leo B. Parker and Lowell L. Knipmeyer for respondents.

(1) The trial court properly sustained defendants' motion for new trial because of error in refusing defendants' requests for a directed verdict. (a) The evidence was insufficient to prove negligence on the part of defendants. There is never a duty to warn unless there is something in the situation from which danger should reasonably be anticipated. American Brewing Assn. v. Talbot, 141 Mo. 683; 45 C. J., pp. 868, 874, 876; Mattingly v. Broderick, 225 Mo.App. 377; State ex rel. v. Ellison, 196 S.W. 1088; Majors v. Ozark P. & W. Co., 205 Mo.App. 337; Hunter v. Busy Bee Candy Co., 271 S.W. 800; Wilson v. Railroad Co., 5 S.W.2d 19. Under the evidence there was no duty by defendants to warn plaintiff. Cash v. Sonken-Galamba Co., 322 Mo. 357; Cluett v. Union E. L. & P. Co., 205 S.W. 75; Nugent v. Kauffman Milling Co., 131 Mo. 256; Evens v. Railroad Co., 178 Mo. 508; Woods v. Railroad Co., 187 S.W. 13; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Hirsch v. Bread Co., 150 Mo.App. 171; Maupin v. Miller, 164 Mo.App. 149; Knowles v. S.W. Bell Tel. Co., 218 Mo.App. 235; Hearon v. Himmelberger-Harrison Lbr. Co., 206 Mo.App. 463; Burge v. American C. & F. Co., 274 S.W. 842. The fact that defendants had no control over the elevator negatives a duty to warn. Dierkes v. Wolf-Swehla D. G. Co., 210 Mo.App. 150; Andrus v. Bradley-Alderson Co., 117 Mo.App. 325; Kilroy v. St. Louis, 242 Mo. 79; McGinley v. Trust Co., 168 Mo. 265; Karp v. Barton, 164 Mo.App. 396; Herdt v. Koenig, 137 Mo.App. 595; Horn Trunk Co. v. Delano, 162 Mo.App. 406; Wilson v. Jones, 182 S.W. 756; Udden v. O'Reilly, 180 Mo. 650; Gray v. Pearline, 328 Mo. 1192, 43 S.W.2d 804; Wilson v. Frankel, 61 S.W.2d 366; Olian v. Olian, 59 S.W.2d 673; Brewer v. Silverstein, 64 S.W.2d 290; Fenton v. Hart, 73 S.W.2d 1034; Harakas v. Dickie, 23 S.W.2d 652; Bleisch v. Helfrich, 6 S.W.2d 978; Dalton v. McGuire Co., 221 S.W. 443; Myerson v. Kralemann, 208 S.W. 859; Hunter v. Schuchart, 267 S.W. 411; 1 Tiffany on Landlord & Tenant, pp. 789, 794; Leuch v. Dessert, 242 P. 15; Bruder v. Philadelphia, 153 A. 725, 302 Pa. 378; Smith v. Preston, 71 A. 656, 104 Me. 156; O'Connor v. Andrews, 16 S.W. 629, 81 Tex. 28, later affirmed in O'Connor v. Curtis, 18 S.W. 953; Burt v. Boston, 122 Mass. 223; Weinberger v. Kratzenstein, 71 A.D. 155, 75 N.Y.S. 537; Clarke v. Phelps, 215 A.D. 500, 214 N.Y.S. 9. (b) Plaintiff was guilty of contributory negligence as a matter of law. State ex rel. Cox v. Trimble, 312 Mo. 322; Bonanomi v. Purcell, 287 Mo. 451; Marshall v. United Rys. Co., 209 S.W. 932; Sloan v. American Press, 327 Mo. 470; Gray v. Levy, 226 Mo.App. 991, 48 S.W.2d 24; Sodamka v. Cudahy Packing Co., 101 Neb. 446, 163 N.W. 809; Ballou v. Collamore, 160 Mass. 246, 35 N.E. 463; Globe Indemnity Co. v. Hook, 189 P. 797; Taylor v. Du Pont Building Corp., 99 A. 284; Evans v. Orttenburger, 217 N.W. 753, 242 Mich. 57; Silver v. Hause, 131 A. 668, 285 Pa. 166; Pentz v. Wetsman, 257 N.W. 735, 269 Mich. 496; Curtis v. Capitol Stage Lines Co., 27 S.W.2d 750; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Rice v. Goodspeed Real Estate Co., 254 Mich. 49, 235 N.W. 814; Claus v. Northern Steamship Co., 89 F. 646; Johnson v. Ramberg, 49 Minn. 341, 51 N.W. 1043; Murray v. Earl, 282 Pa. 517, 128 A. 436; Wright v. Salvation Army, 125 Neb. 216, 249 N.W. 549; Waldmann v. Construction Co., 289 Mo. 622. (2) The trial court properly sustained the motion for new trial because the verdict was grossly excessive. Lessenden v. Railroad Co., 238 Mo. 247; Dominick v. Western Coal & Mining Co., 255 Mo. 463; Johnson v. Waverly Brick & Coal Co., 205 S.W. 615; Fitzsimmons v. Railroad Co., 242 S.W. 915; Miller v. Schaff, 228 S.W. 488; Kibble v. Railroad Co., 227 S.W. 42; Newcomb v. Railroad Co., 182 Mo. 687; Lepchenski v. Ry. Co., 59 S.W.2d 610; Davis v. Buck Stove & Range Co., 49 S.W.2d 47; Hiatt v. Ry. Co., 69 S.W.2d 627; Harlan v. Ry. Co., 73 S.W.2d 749; Cole v. Ry. Co., 61 S.W.2d 344; Johnson v. Ry. Co., 64 S.W.2d 674; Evens v. Railroad Assn., 69 S.W.2d 929. The granting of a new trial on the ground of excessive verdict is a matter resting within the sound discretion of the trial court, and its action in that regard will not be disturbed on appeal unless it plainly appears that the power has been abused. Morrell v. Lawrence, 203 Mo. 381; Devine v. St. Louis, 257 Mo. 470; Walthall v. Pub. Serv. Co., 66 S.W.2d 177; Meeks v. Pub. Serv. Co., 73 S.W.2d 337; Rosemann v. Ry. Co., 194 S.W. 1088; Dietrich v. Ice Co., 286 S.W. 38.

Cooley, C. Westhues and bohling, CC., concur.

OPINION

COOLEY

Action for damages for personal injuries sustained by plaintiff when struck by a descending freight elevator. Plaintiff obtained judgment for $ 23,500. The circuit court sustained defendants' motion for new trial and from that order plaintiff appealed. One of the grounds on which the court sustained the motion for new trial being that the plaintiff was guilty of contributory negligence it will be necessary to state the facts, especially those bearing upon that issue, with some detail. Plaintiff's evidence tended to show the following:

The corporation defendants, tenants under a lease from the owner of the building, operated a store on the first floor of a six story building in Kansas City. Their lease included part of the basement beneath their storeroom and also entitled them to use the elevator. Harrison was their employee and was manager of the store. The store fronted west on Walnut Street, the front being on a level with that street. At its east end the store abutted on an alley, in which there was a "dock" or platform, some eight feet higher than the Walnut Street floor of the store, at which merchandise or other freight could be unloaded from trucks and thence taken by the elevator to the several floors of the building. The elevator shaft extended from the basement floor, at the southeast corner thereof, to at least the fifth floor of the building. A witness for plaintiff testified that it served five floors. Various other tenants of the owner of the building occupied space on the first floor and the floors above and had the same rights as defendants to use, and did use, the elevator. The elevator shaft was not in the part of the basement leased to defendants. It opened into what is referred to by witnesses as an areaway, extending northward from the shaft and separated from defendants' part of the basement by a wall, in which there was a door, or perhaps double doors, opening from defendant's part of the basement into the areaway. The basement door to the elevator shaft opened outward from the shaft into said areaway. It is described as a heavy door, about the width of the elevator shaft, swung on hinges at the side and having a weight attached to it by a rope so arranged by means of...