McCloskey v. Salveter & Stewart Investment Co.

• Citation: 298 S.W. 226,317 Mo. 1156
• Decision Date: 16 September 1927
• Docket Number: 25862
• Parties: Gaston S. McCloskey, Appellant, v. Salveter & Stewart Investment Company
• Court: Missouri Supreme Court

298 S.W. 226

317 Mo. 1156

Gaston S. McCloskey, Appellant, v. Salveter & Stewart Investment Company

No. 25862

Supreme Court of Missouri

September 16, 1927

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

Reversed and remanded.

Abbott Fauntleroy, Cullen & Edwards and Rice & Straub for appellant.

(1) If the owner elects to keep the shaft opening unguarded he must keep the surroundings well lighted, so that a person exercising due care for his safety will not step into it, and if he fails to do so he is liable for the ensuing negligence. 9 R. C. L. 1241. (2) It was the duty of defendant, in operating the elevator, to exercise the utmost care and diligence, and to provide and maintain proper and secure fastenings to the doors opening into the elevatorway that could not be opened or controlled from the outside. Colorado Inv. Co. v. Rees, 42 P. 42; Burner v Higman & Skinner Co., 103 N.W. 803. (3) The locks on the elevator door in question were so defective that if the door did not rebound anyone wanting to use the elevator "would just walk in and open the door and use it." Therefore, it was "wholly immaterial whether such door was opened by some third person," provided that such accident could not have happened but for the negligence of the defendant in keeping and maintaining the fastenings to its elevator door; for, had it performed its duty in the premises, such interference by a third party would have been impossible. Hence its negligence necessarily concurred in, and constituted an essential factor in, causing the injury. Colorado Inv. Co. v. Rees, 42 P. 45. (4) "It is well settled by the adjudged cases that where an injury is the result of the combined negligence of the defendant and the negligent or wrongful act of a third person, for whose act neither the plaintiff nor the defendant is responsible, the defendant is liable, when the injury would not have happened, except for his negligence." Shearman & Redfield on Negligence, sec. 10. (5) "A person has the right to assume that the owner and operator of an elevator will exercise that high degree of care that the nature of the business demands, and will see to it that the approaches thereto are reasonably safe, and that the doors to the shaft can be safely and securely locked, and are not negligently left open; and that he may safely enter when he finds the door open, without stopping to make a special examination. Tousey v. Roberts, 114 N.Y. 312. When the motion was interposed, the evidence before the jury tended to show that, because of the broken lock on the elevator door, the door was standing open; and that, owing to the inadequate light in the hallway, plaintiff failed to discover the absence of the elevator. Whether, under the circumstances thus shown, he exercised that degree of care which persons of ordinary prudence would exercise on approaching and entering the elevator, was at least a question of fact for the jury. Colorado Inv. Co. v. Rees, 42 P. 43. (6) The owner of an elevator must use the highest degree of care, vigilance and precaution, both in providing and managing it. 9 R. C. L. 1249; Lander v. Hornbeck, 179 P. 21; Luckel v. Building Co., 177 Mo. 628. (7) The permissive use of the elevator to any who desired was negligence. Lander v. Hornbeck, 179 P. 21. (8) It is not contributory negligence not to look for danger when there is no reason to apprehend any. People's Bank v. Morgolofski, 32 Am. St. 411.

Foristel, Mudd, Hezel & Habenicht for respondent.

(1) The record fails to show any negligence on the part of the defendant proximately causing injury to the plaintiff. Katz v. Development Co., 215 Mo.App. 662; Hake v. Stove & Range Co., 234 S.W. 1061. (2) It is not shown that defendant owed plaintiff any duty to keep the hallway lighted after 6:30 o'clock in the evening when the plaintiff entered into it to go up the stairway. Morse v. Maddox, 17 Mo. 569; New Era Mfg. Co. v. O'Reilly, 197 Mo. 466; Dean v. Murphy, 169 Mass. 413; Gleason v. Boehm, 58 N. J. L. 475; Jucht v. Behrens, 7 N.Y.S. 185; 36 C. J. 36, sec. 636; 16 R. C. L. 1041, sec. 560; 14 Ann. Cas. 764, note; 19 Ann. Cas. 667, col. 1, note. (3) Plaintiff directly contributed to his injuries by negligence on his own part. Gleason v. Boehm, 58 N. J. L. 475; Hilsenbeck v. Guhring, 131 N.Y. 674; Miller v. Mencken, 26 N.Y.S. 801; Jucht v. Behrens, 7 N.Y.S. 185; State ex rel. v. Trimble, 279 S.W. 60.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

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, 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, and that many of them and others were at all times herein mentioned accustomed to operate in the evening the elevator herein mentioned. . . .

"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 eight or ten 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 and to prevent tenants and others from operating said elevator and to turn off in the evening the electric 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...