Pearson v. Kansas City

• Decision Date: 20 December 1932
• Docket Number: No. 30436.,30436.
• Citation: 55 S.W.2d 485
• Parties: ADA PEARSON v. KANSAS CITY, Appellant.
• Court: Missouri Supreme Court

55 S.W.2d 485

ADA PEARSON v. KANSAS CITY, Appellant.

No. 30436.

Supreme Court of Missouri.

Division One, December 20, 1932.

Appeal from Jackson Circuit Court. — Hon. Thos. J. Seehorn, Judge.

REVERSED.

George Kingsley, James R. Sullivan and Arthur R. Wolfe for appellant.

(1) The court erred in not sustaining defendant Kansas City's demurrer offered at the close of plaintiff's evidence for the reason that plaintiff's petition and evidence showed that the injuries of plaintiff, a police matron, were suffered by her while on duty as a police matron by reason of a defective elevator and a poorly lighted hallway in No. 4 Police Station, all of which were exclusively in the possession and control of the Police Department, a state agency and a governmental function, and for which the defendant Kansas City was not liable. Art. 23, chap. 38, R.S. 1929; State ex rel. Bd. of Police Commrs. of Kansas City v. Smith, 329 Mo. 1019; State ex rel. Hawes v. Mason, 153 Mo. 43; State ex rel. Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591; Strother v. Kansas City, 283 Mo. 293, 223 S.W. 419; Am. Fire Alarm Co. v. Board of Police Commrs. of Kansas City, 285 Mo. 581; State ex rel. Board of Police Commrs. v. Beach, 325 Mo. 175, 28 S.W. (2d) 105. City not liable for injury in police department, a state agency. 43 C.J. 490, sec. 1717; Worley v. Columbia, 88 Mo. 106; Wilks v. Caruthersville, 162 Mo. App. 499; Bullmaster v. St. Joseph, 70 Mo. App. 67; Cassidy v. St. Joseph, 247 Mo. 207; Maxmillan v. Mayor of New York, 62 N.Y. 164; Goldfast v. New York, 178 N.Y. Supp. 541, 108 Misc. Rep. 505; Gaetjens v. New York, 116 N.Y. Supp. 759, 132 App. Div. 394. Maintenance and operation of police station and elevator a governmental function. Russell v. Devon, 2 T.R. 667, 100 Eng. Reprint 359, 1 Revised Rep. 585, 12 Eng. Rul. Cas. 694; Murtaugh v. St. Louis, 44 Mo. 479; McKenna v. St. Louis, 6 Mo. App. 321; McQuillin's Municipal Corporations (2 Ed.) sec. 2793; Ely v. St. Louis, 181 Mo. 723; Harmon v. St. Louis, 137 Mo. 494; Donohue v. Kansas City, 136 Mo. 664; Carrington v. St. Louis, 89 Mo. 208; Kitey v. Kansas City, 87 Mo. 103; Armstrong v. Brunswick, 79 Mo. 319; Barree v. Cape Girardeau, 132 Mo. App. 182; Bullin v. Moberly, 131 Mo. App. 172; Ulrich v. St. Louis, 112 Mo. 138; Nicholson v. Detroit, 129 Mich. 249, 88 N.W. 695, 56 L.R.A. 601; 19 R.C.L. 1123; 43 C.J. 964, sec. 1745; 43 C.J. 1167, sec. 1932. Missouri decisions denying liability in governmental functions. Stater v. Joplin, 189 Mo. App. 383, 176 S.W. 241; Ulrich v. St. Louis, 112 Mo. 138; Cunningham v. St. Louis, 96 Mo. 53; Kruger v. Board of Education, 310 Mo. 248, 274 S.W. 814; Dick v. Board of Education, 238 S.W. 1073; Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1052; Zummo v. Kansas City, 285 Mo. 222, 225 S.W. 934; Healey v. Kansas City, 277 Mo. 619, 211 S.W. 59; Connelly v. Sedalia, 2 S.W. (2d) 632; Hawkins v. Springfield, 194 Mo. App. 151, 186 S.W. 576; Barnes v. Waco, 262 S.W. 1081; Wilcox v. Rochester, 190 N.Y. 137, 82 N.E. 1119, 17 L.R.A. (N.S.) 741, 13 Ann. Cas. 759; Snider v. St. Paul, 51 Minn. 466, 53 N.W. 763, 18 L.R.A. 151; Eads v. Y.W.C.A., 325 Mo. 577, 29 S.W. (2d) 701; Scott v. Indianapolis, 75 Ind. App. 387, 130 N.E. 658; Schwalk, Admr. v. Louisville, 135 Ky. 570, 122 S.W. 860, 25 L.R.A. (N.S.) 88; Miller v. Macon, 152 Ga. 648, 110 S.E. 873; Howard v. New Orleans, 159 La. 443, 105 So. 443. (2) Plaintiff, an experienced police matron, had used this elevator many months and in going to the captain's office she left the elevator door open and upon returning to the elevator twenty or thirty minutes later she walked into the open door without ascertaining that the elevator was not there and fell down the shaft. Plaintiff's evidence clearly shows she was guilty of contributory negligence as a matter of law and the court erred in refusing to sustain a demurrer thereto. Francis v. West Plains, 203 Mo. App. 256, 216 S.W. 811; Marshall v. United Rys. Co. of St. Louis, 209 S.W. 931; State ex rel. Cox v. Trimble, 312 Mo. 322, 279 S.W. 60; Bonanomi v. Purcell, 287 Mo. 450, 230 S.W. 120; Boesel v. Wells Fargo & Co., 260 Mo. 478, 169 S.W. 110.

Manard & Schwimmer and Carroll W. Berry for respondent.

(1) The court did not err in overruling appellant's demurrer offered at the close of plaintiff's evidence for the reason that plaintiff's petition and evidence showed that the injuries of plaintiff were suffered by her while exercising due care for her own safety and by reason of a defective elevator, a poorly and inadequately lighted hallway and shaft, which condition had existed for a long period of time and being known to appellant, created a nuisance which was allowed to exist and be maintained on appellant's property. Webster's Dictionary; 2 Bouvier's Law Dictionary, p. 524; Colorado Mfg. Co. v. Giacomini, 55 Colo. 540, L.R.A. 1915 B, 382; Roth v. District of Columbia, 16 App. D.C. 323; 43 C.J. sec. 1734, p. 956; Torpey v. Independence, 24 Mo. App. 294; Davoren v. Kansas City, 273 S.W. 401; Yeoman v. Kansas City, 18 S.W. (2d) 110; District of Columbia v. Totten, 5 Fed. (2d) 374; Sumid v. City of Prescott, 27 Ariz. 111, 230 Pac. 1103; London v. New York City, 180 N.Y. 48; Colwell v. Waterbury, 74 Conn. 568; 43 C.J. sec. 454, p. 806; Cambest v. McComas Hydro-Electric Co., 212 Mo. App. 325, 245 S.W. 598; Sullivan v. Waterman, 20 R.I. 372, 39 L.R.A. 773; Hall v. Galloway, 76 Wash. 42, 135 Pac. 478; R.S. 1929, sec. 7519; American Fire Alarm Corp. v. Bd. of Police Commrs., 285 Mo. 590, 227 S.W. 116; State ex rel. Wander v. Kimmer, 165 S.W. 1073, 256 Mo. 663; Rohan Boiler Works Co. v. Young, 176 S.W. 296, 190 Mo. App. 649. (2) Respondent's evidence discloses that she was exercising due care for her own safety at the time she was injured, and was not guilty of contributory negligence as a matter of law. Schultz v. Jones, 9 S.W. (2d) 250; Mallory v. Louisiana Pure Ice and Supply Co., 6 S.W. (2d) 622; Katz v. North Kansas City Dev. Co., 14 S.W. (2d) 708; Francis v. West Plains, 203 Mo. App. 249, 216 S.W. 810; Marshall v. United Rys. Co., 209 S.W. 931; Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120; Edmondson v. Hotel Statler Co., 267 S.W. 615; Aiken v. Sidney Steel Scraper Co., 198 S.W. 1140, 197 Mo. App. 673; Katz v. North Kansas City Development Co., 14 S.W. (2d) 708. (3) The court did not err in giving Instruction 1. Am. Fire Alarm Corp. v. Bd. of Police Commrs., 285 Mo. 590, 227 S.W. 116; State ex rel. Wander v. Kimmer, 165 S.W. 1073, 256 Mo. 663; Rohan Boiler Works Co. v. Young, 176 S.W. 296, 190 Mo. App. 649; Buck v. Thatcher, 7 S.W. (2d) 398; Jamison v. Kansas City, 17 S.W. (2d) 621; Jones v. St. Louis-S.F. Ry. Co., 288 S.W. 780. (4) The court did not err in giving plaintiff's Instruction 3. Baxter v. Campbell Lumber Co., 171 S.W. 958, 186 Mo. App. 352.

HYDE, C.

This is an action (filed July 21, 1926) for damages for personal injuries resulting from a fall into an elevator shaft. Respondent was a matron at Police Station No. 4 in Kansas City. This police station property was purchased by the city and the title conveyed to it through the exercise of an option to purchase in a lease made by the Kansas City Police Board. After this purchase, the city made extensive improvements there with the proceeds of a bond issue for police and municipal court purposes. It was a two-story building, the first floor of which was used entirely for police purposes, with a jail or hold-over for men prisoners and another for women prisoners, a main office, a captain's office and a booking desk. Along the south side of the booking desk was a lobby, at the west end of which a narrower corridor ran west to the officers' toilet room. On the south side of this corridor was the door to the hold-over for the women prisoners and on the north side was the elevator shaft and the janitors' closet. The elevator ran only between the first and second floors, but there was a pit, about ten feet deep, in the shaft below the first floor which could be entered from the basement. The elevator was an hydraulic type operated by pulling a cable. No operator was employed, but whoever used it operated it. On the second floor of the building was located the matron's rooms. Juvenile prisoners were taken care of there. On the second floor was also the police traffic bureau and the courtroom of the south side municipal court. There was a stairway from the first floor used by the traffic officers and those having business with the traffic bureau or in the municipal court. The elevator was principally used by the members of the police force working at Station No. 4 for convenience in going between the two floors, for taking prisoners to and from the municipal court and for taking persons, brought to the traffic bureau for violation of traffic regulations, to the booking desk.

On December 2, 1921, between three and four in the afternoon, respondent, who had been working at this station about five months, brought a girl prisoner from the Matron's rooms on the second floor to the captain's office to be interviewed by Federal officers. She used the elevator to come down to the first floor and left it there, with the shaft door open about three feet. She testified that the latch on the door was not working properly and that if it was closed it could not be opened from the outside without the use of a wire or an ice pick or some such instrument; that she had been instructed by the janitor, who showed her how to operate the elevator, to always leave it open for this reason; and there was also testimony that orders to that effect had been posted on the station bulletin board. When she returned from the captain's office to the elevator with the prisoner, the door was open just as she had left it. She said she looked toward the shaft, thought she saw the elevator there, stepped into the door and fell into the pit. Whether someone else had taken the elevator to the second floor or whether it went up because of leaky pressure (which it was...