McCloskey v. Salveter & Stewart Inv. Co.

• Decision Date: 16 September 1927
• Docket Number: No. 25862.,25862.
• Citation: 298 S.W. 226
• Parties: McCLOSKEY v. SALVETER & STEWART INV. CO.
• Court: Missouri Supreme Court

298 S.W. 226

McCLOSKEY v. SALVETER & STEWART INV. CO.

No. 25862.

Supreme Court of Missouri, Division No. 1.

September 16, 1927.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Gaston S. McCloskey against the Salveter & Stewart Investment Company. From a judgment of dismissal plaintiff appeals. Reversed and remanded.

Abbott, Fauntleroy, Cullen & Edwards and Rice & Straub, all of St. Louis, for appellant.

Foristel, Mudd, Hezel & Habenicht, of St. Louis, for respondent.

SEDDON, C.

Action by plaintiff (appellant) to recover damages in the sum of $25,000 for personal injuries suffered by plaintiff and alleged to have been caused by the negligence of defendant (respondent) while plaintiff was rightfully and lawfully within the first or ground floor hallway of defendant's business building at 507 North Broadway street, in the city of St. Louis, known as the Stewart building. Plaintiff fell into an open elevator shaft or well in the building, which was owned and operated by defendant corporation. The negligence charged against defendant in the petition is as follows:

"Plaintiff states that defendant at all times herein mentioned was in possession and control of the elevator shaft, hallway, and elevator herein mentioned, and knew, or by the exercise of ordinary care should have known, that tenants were accustomed to occupy their offices in said building in the evening, arid that many of them and others were at all times herein mentioned accustomed to operate in the evening the elevator herein mentioned. * * *

"The plaintiff further states that the only entrance to this building is from the Broadway side, and that the said defendant has provided an elevator and also a stairway in said entrance for the purpose of enabling persons having business in said building to go to any of the upper stories thereof, and that the stairway adjoined said elevator shaft to the southeast.

"Plaintiff says that on the night in question, when he attempted to enter said building, the hallway of said building was without lights and dark; that the elevator was not at the ground floor of the shaft; and that the doorway of the said elevator shaft at the ground floor was open, and the pit beneath said elevator was about 8 or 10 feet deep.

"Plaintiff states that on the evening he was hurt, and for a long time prior thereto, the lock upon the door, which, on the ground floor, separated the hallway from the elevator shaft, was broken and of no use; that this being so, tenants and those other than tenants could and, did operate said electric elevator at any time in the evening, all of which defendant knew, or by the exercise of ordinary care, could and should have known; that defendant negligently failed to repair the aforesaid lock, and had for a long time and at the time of plaintiff's injuries negligently allowed said lock of said door to be and remain in such defective condition that, when the aforesaid door was pushed closed, it would rebound and remain open, and negligently failed to take ordinary care to prevent in the evening the operation of said elevator by tenants and others, and negligently failed to keep said elevator in the evenings and particularly the evening in question at the ground floor, and negligently failed to light the aforesaid hallway. Plaintiff states that it was the duty of defendant to keep the hallway of said building lighted in the evening, to keep the aforesaid lock of the aforesaid door in good condition, to lock the aforesaid door and to keep it closed, to prevent tenants and others from operating said elevator, to turn off in the evening the electrict current from said elevator, and to keep the aforesaid elevator at the ground floor, all of which defendant on the occasion of plaintiff's injury negligently failed to do, and which acts of negligence (stated in this paragraph) on the part of defendant, its agents, and servants directly caused plaintiff's injuries as hereinafter stated.

"Plaintiff states that in attempting to enter said building, not knowing that said elevator was not in operation, and not knowing the door thereof was open, he attempted to find his way to said stairway, and on account of the darkness was unable to see that said elevator door was open, and in attempting to make his journey to said stairway he walked up to the front of said elevator, and, the door being open, he fell into said pit and was thrown a great distance down to the floor of said pit and greatly and permanently injured."

The answer of defendant is a general denial, and, by way of further defense—

"defendant states that whatever injury, if any, plaintiff sustained on the occasion mentioned in his said amended petition was due to and caused by his own negligence and carelessness, directly contributing thereto in this, that plaintiff, without using and exercising ordinary care for his own safety, entered said building in the nighttime, and when it was dark therein, and walked about in said building then and there in the nighttime and when no light or lights were burning in said building, and when it was dark in said building, and in the nighttime; that plaintiff, upon coming to and against the door of the elevator shaft in said building, and while it was dark and in the nighttime, as aforesaid, and when he could not see where or into what place said door permitted entrance, opened the said door and entered into and through the same and thereby was caused to fall into and down said elevator shaft."

The reply is a general denial.

At the beginning of the trial, defendant, through its counsel, made the following admission, which is incorporated in the record:

"No question but what the Salveter & Stewart Investment Company owned the building; he need not offer any proof on that. We admit it. I will make this admission: The record may show that to each tenant we signed up directly with, we gave a key to their part of the building, whatever floor it happens to be, and likewise a key to the outer door of 507 North Broadway. That had taken place prior to April, 1922; we did not give any key, and this admission must not go to the extent that we gave a key to Liggett & Myers Tobacco Company, because they were not our tenants. Likewise, the record may show that there were no lights burning in the hall; that it was extremely dark in the hall at the time described, and as will be shown by the evidence in the case."

Plaintiff was injured about 6:45 o'clock on the evening of April 10, 1922. He was a salesman employed by the Liggett & Myers Tobacco Company, which company occupied and maintained an office on the second floor of said Stewart building under a sub-tenancy or rental arrangement with Smith-Daniels Clothing Company, tenants of defendant, which latter company occupied the remainder, or front part, of the second floor of said building. The fourth floor of the building was rented and used by the Burroughs Adding Machine Company, and other floors were rented and occupied by various tenants of defendant. For approximately three months prior to plaintiff's injury, the Burroughs Adding Machine Company had maintained a salesmanship school on the fourth floor of the building on three nights of each week, and the evidence tends to show that the employees of said company, on said nights, used the elevator in question "right along during all the time we had the school, three nights a week." Likewise, the employees of the Liggett & Myers Tobacco Company, on Monday evening of each week, for six or seven months prior to plaintiff's injury, had used its office on the second floor of the building for a salesmanship school. Plaintiff testified that he had attended these salesmanship meetings, or school, but, prior to the night of his injury, he had never entered the building alone after the lights in the first or ground floor hallway had been extinguished. The evidence tends to show that defendant employed a negro woman to operate the elevator between the hours of 7:30 o'clock in the morning and 6 o'clock in the evening. That the elevator operator, defendant's employee, doubtless had knowledge of the use of the elevator by tenants of the building and their employees, at night, and after the hours of the elevator operator's period of employment, is strongly indicated by the following testimony of one of the employees of the Burroughs Adding Machine Company, elicited on cross-examination by defendant:

"Well, when we went in there that evening, or any evening we went in there, generally, sometimes the elevator operator used to sin,. render the elevator right to us; she would walk out, take her hat and coat, and we would take the elevator and go right upstairs."

The lights in the first floor hallway were turned off by a light key, furnished by defendant to a tenant on the first floor and who was the owner of a cigar stand located in the building, who testified that he "closed up about 6:30 and turned off the lights under instructions from the owner (defendant) every evening."

Defendant's office building is situate at the northwest corner of Broadway and St. Charles street. The ground floor hallway, leading to the building, opens on the west side of Broadway, some distance north of St. Charles street. The entrance hallway extends east and west, and has two sets of double doors, the first set being 4 feet 6 inches from and west of the Broadway entrance. Immediately upon entering the first set of double doors, there is encountered a cigar stand on the left or south side of the hallway, and on the right or north side a gum or peanut vending machine upon a pedestal adjacent or chained to the wall. Immediately west of the vending machine is a steam radiator located on the right or north side of the hallway. Passing these, one encounters a second set of double doors, similar to the first set, but located some distance west of the first set of doors, and nearer the stairway and elevator. Passing through the second set...