Kennedy v. Phillips

• Decision Date: 24 March 1928
• Docket Number: No. 26277.,26277.
• Citation: 5 S.W.2d 33
• Parties: GEORGE C. KENNEDY v. C.J. PHILLIPS, Appellant.
• Court: Missouri Supreme Court

5 S.W.2d 33

GEORGE C. KENNEDY v. C.J. PHILLIPS, Appellant.

No. 26277.

Supreme Court of Missouri, Division Two.

March 24, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. J. Hugo Grimm, Judge.

REVERSED AND REMANDED.

Jones, Hocker, Sullivan & Angert for appellant.

(1) The plaintiff was a mere licensee upon the premises. 20 R.C.L. 69, sec. 60; Milauskis v. Terminal Railroad Assn., 286 Ill. 547; Coburn v. Swanton, 109 Atl. (Vt.) 857: Roe v. Packing Co., 203 Mo. App. 21; Muench v. Heineman, 96 N.W. 802: Fitzpatrick v. Glass Mfg. Co., 39 Atl. 675. (2) A licensee must take the premises as be finds them, and cannot complain that they are not made safe for him. Carr v. Railway Co., 195 Mo. 226; Forsythe v. Grocery Co., 223 S.W. (Mo. Sup.) 41; Kelly v. Benas, 217 Mo. 9; Glaser v. Rothschild 221 Mo. 86; Barry v. Cemetery Assn., 106 Mo. App. 363; Plummer v. Dill, 156 Mass. 426. (3) Plaintiff's status is to be determined by the motive for his own entry; not that of his companions, or any of them. Petree v. Davidson Co., 118 S.E. (Ga. App.) 698; Flickenstein v. Tea Co. (N.J.), L.R.A. 1918C. 180; Murphy v. Huntly, 146 N.E. (Mass.) 711: Rhode v. Duff, 208 Fed. 116: Branan v. Wimsatt 298 Fed. 837; Meiers v. Brewery Co., 229 N.Y. 101. (4) An invitee, who departs from the invitation, is no longer protected by it and becomes either a licensee or a trespasser. Menteer v. Fruit Co., 240 Mo. 183; Shuck v. Realty Co., 201 S.W. (Mo. Sup.) 560; Davis v. Ringolsky, 143 Mo. App. 365; Ryerson v. Bathgate, 67 N.J.L. 337 (approved by both majority and minority in Glaser v. Rothschild, 221 Mo. 180): Pierce v. Whitcomb, 48 Vt. 127; 20 R.C.L. 70 sec. 67. (5) The plaintiff, if he hadn't sufficient light to be safe, was well aware of it, and was negligent in proceeding without it. (6) Unless the defendant is shown to have had knowledge of the peril, no duty to warn could arise, even in favor of an invitee. 20 R.C.L. 56, sec. 52. (7) There was no evidence to go to the jury as to any negligence of the defendant respecting the condition of the elevator or gate, and plaintiff's case, in that respect, rests upon the purest conjecture. Bailey v. Stix. Baer & Fuller D.G. Co., 149 Mo. App. 663: Garanson v. Mfg. Co., 186 Mo. 307; State ex rel. v. Cox, 298 Mo. 427. (8) It is error to give instructions not supported by the evidence. Fitzsimmons v. Mo. Pac. Ry. Co., 294 Mo. 576: Champion Paper Co. v. Skilkie, 237 S.W. 109; DeGonia v. Ry. Co. 224 Mo. 564; Albrecht v. Schultz Belting Co., 299 Mo. 12; Brendel v. Union Elec. Co., 252 S.W. 635. (9) No duty could arise to provide a light for the plaintiff unless the defendant knew a light was needed. Evans v. Explosives Co., 293 Mo. 384; Forrester v. Clay Products Co., 231 S.W. 668; Bailey v. Dry Goods Co., 149 Mo. App. 664. (10) An instruction which is an argumentative comment on the evidence ought not to be given. Rice v. Wanset Co., 216 S.W. 753; Quin v. Railways Co., 267 S.W. 416; Choquette v. Barada, 28 Mo. 499; Wolff v. Carstens, 134 N.W. 402.

Foristel, Mudd, Blair & Habenicht and Harry S. Rooks for respondent.

(1) Plaintiff, at the time and place when injured, was an invitee upon defendant's premises. Glaser v. Rothschild, 221 Mo. 180; Welch v. McAllister, 15 Mo. App. 492; McCullen v. Amusement Co., 189 Mo. App. 139; Hollis v. Merchants' Assn., 205 Mo. 520; Applegate v. Railroad, 252 Mo. 187; Kean v. Schoenig, 103 Mo. App. 77; Bennett v. L. & N. Railroad, 102 U.S. 577; Warner v. Lucey, 201 N.Y. Supp. 658; Fleishmann Malting Co. v. Mrkacek. 14 Fed. (2d) 602. (2) The evidence showed a prima-facie case for the jury as to defendant's negligence directly and proximately causing plaintiff's injuries. Glaser v. Rothschild, 221 Mo. 180; Welch v. McAlister, 15 Mo. App. 492; Geninazza v. Storage Co., 252 S.W. 417. The jury could infer from the facts in evidence that an employee of defendant negligently left the elevator gate open. Crawford v. Stock Yards Co., 215 Mo. 418. (3) The evidence did not show, as matter of law, that plaintiff was guilty of contributory negligence. Geninazza v. Storage Co., 252 S.W. 420; Welch v. McAlister, 15 Mo. App. 492; Glaser v. Rothschild, 221 Mo. 180. (4) Even if plaintiff were a mere licensee, defendant would, under the facts, be liable for plaintiff's injuries, since the jury could find from the evidence that defendant was guilty of active negligence. Brinilson v. Chicago & Northwestern Railroad, 144 Wis. 614; Herold v. Matthews Point House, 39 Cal. App. 489. A proprietor is liable even to a hare licensee for active negligence. Glaser v. Rothschild, 221 Mo. 180 185; Menteer v. Fruit Company, 240 Mo. 184. (5) Plaintiff's Instruction 5 was not erroneous and was properly given to the jury. It is not open to the objections made by appellant: (a) A mere inspection of the instruction shows that it did not define or even attempt to define negligence. (b) It was not argumentative or a comment on the evidence. It was a correct statement of the law that the jury could under the evidence find that one of defendant's employees left the elevator gate open. Crawford v. Stock Yards, 215 Mo. 418. And it was proper to so instruct the jury as to the law applicable to the facts.

HENWOOD, C.

Kennedy sued Phillips, in the Circuit Court of the City of St. Louis, for damages arising out of personal injuries suffered by him on September 22, 1922, when he fell down an unguarded elevator shaft in Phillips' store building. The trial resulted in a verdict and judgment for Kennedy in the sum of $8000, and the case is here on Phillips' appeal from that judgment.

The questions presented for our review do not involve the pleadings and, although the motion for a new trial asserts that the verdict is excessive, no contention is made here as to the extent of the injuries complained of, nor as to the amount of damages awarded therefor.

Three items of negligence are alleged in the petition, (1) the unguarded elevator shaft, (2) insufficient light, and (3) failure to warn as to the danger. The answer is a general denial, coupled with a plea of contributory negligence. The reply is a general denial of the affirmative allegations of the answer.

A careful examination of the record discloses that counsel for respondent have, with a few exceptions, fully summarized the evidence on both sides, in their brief. With some alterations and additions, we adopt it as a fair statement of the material facts. So amended, the statement is as follows:

"At the time in question, the defendant owned and occupied a three-story brick building in the city of St. Louis, with a frontage of sixty-seven feet on Seventh Street and a depth of 128 feet on Poplar Street. The building was divided into three sections of three stories each, but we are concerned with the middle section only in this case. The second floor of this middle section was a room, about twenty feet wide and one hundred and twenty feet long, running lengthwise in an east-and-west direction. The west end thereof was the front, and faced on Seventh Street, while the east end thereof abutted an alley at the rear of the building. There was a stairway that led from the first floor to this second-floor room. Near the southeast corner of this room was the elevator shaft into which plaintiff fell. It was located at a distance variously estimated as six, ten or fourteen feet, from the east wall of the building, and was against the south wall. This shaft was about six feet square and through it ran the hydraulic elevator, which extended from the basement of the building to the third floor. The east and west sides of this elevator shaft on the second floor were said by defendant to be boarded up with unpainted boards and in their natural color, except as darkened by time. The east wall was painted gray, and last painted several years before. The south side of the elevator shaft was against the south wall of the room. The north side of the shaft was the entrance to the elevator, and it was entirely open except that it was provided with a gate. There was evidence that this gate was a slat-covered framework, about five feet high, running up and down vertically in grooves at the side of the shaft. When down, or closed, the lower edge of the gate was about ten inches above the floor level. When normally raised and open, its lower edge was just about high enough for a man to walk under it, or about six feet. It appears from defendant's evidence that this gate was of a type called semiautomatic, and that it did not automatically open, but always had to be opened by hand by raising the gate up. When raised up there was some sort of a dog or ratchet device, which would hold the gate open in its raised position, and when the elevator at the floor was moved it would release the dog or ratchet, thereby automatically causing the gate to drop. The weight caused the gate to drop with such force that rubber was put on the gate to keep it from making a noise when it dropped. According to defendant's evidence, movement of the elevator of not more than about two inches from the floor level would release the gate on the second floor and cause it to fall. There was no device thereon that would prevent the gate from being opened when the elevator was not at the particular floor, nor was there any device which kept the elevator from being operated even though a gate at one of the floors was open, except that, as above stated, when in proper working order, movement of the elevator would release the gate at the particular floor if that gate was open. The gate could be propped up in an open position, in which event, of course, operation of the elevator would not cause it to fall or drop into the closed position. This elevator was, according to defendant's testimony, a freight elevator used only by himself and his employees, and other persons were not permitted thereon.

"The north and south sides of this room, each 120 feet long, had no windows whatever therein. But, at the east and...