Roper v. Wadleigh

• Decision Date: 27 March 1920
• Docket Number: No. 2553.,2553.
• Citation: 219 S.W. 982
• Parties: ROPER v. WADLEIGH.
• Court: Missouri Court of Appeals

219 S.W. 982

ROPER v. WADLEIGH.

No. 2553.

Springfield Court of Appeals. Missouri.

March 27, 1920.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by D. M. Roper against Ione Moore Wadleigh. From a judgment for plaintiff, both parties appeal. Affirmed.

Walden & Andrews, of Joplin, for appellant.

A. W. Thurman and Hugh Dabbs, both of Joplin, and R. M. Sheppard, of Kansas City, for respondent.

STURGIS, P. J.

The plaintiff received personal injuries, for which he sues, by reason of a heavy iron ladder, part of a fire escape, falling on him while he was walking along the sidewalk on the north side of Fifth street in Joplin, Mo. This fire escape was part of defendant's building located on the northwest corner of Fifth and Joplin streets in said city. This building was known as the Empress Theater, was two stories high, and fitted up with a stage, opera chairs, etc. It would accommodate 600 to 1,000 people and had been used for various kinds of shows and entertainments charging admission for 10 or 12 years. At the time of this accident it was leased to and operated by Jimmie Bronson as headquarters for an athletic association, and was chiefly used for boxing matches or "prize fights;" as some witnesses called same. The stage or "ring" was on the ground floor, and the second story was a large balcony, the spectators occupying both floors. The building fronted east, and on the south side, on Fifth street, this outside fire escape had been connected with the balcony. A large door opened from the balcony onto the landing of the fire escape, which was directly over the sidewalk. A stairway fastened into the side of the building led from this balcony downward to within 10 or 12 feet of the sidewalk. Then there was what is called a drop ladder working on a hinge and held in a horizontal position above the sidewalk by a heavy weight of some 75 to 80 pounds. When any person wanted to leave the building by the fire escape he went from the balcony through the door and down the steps to the drop ladder. Stepping on this, his weight would cause the ladder to descend till the end rested on the sidewalk, thus forming an outside stairway to the sidewalk. When in usual position, this drop ladder formed no obstruction to the sidewalk as pedestrians walked under it, but when it came down it did so on the sidewalk.

On the occasion of plaintiff's injury a capacity house had been witnessing a boxing match at this theater, and, the "bout" being over, the audience were leaving the building. As plaintiff was quietly walking along the sidewalk under the fire escape, unaware of the impending danger, a number of persons made their exit from this building by way of the fire escape, and, coming to the drop ladder thereon, the same descended without warning on plaintiff's head, crushing him to and on the sidewalk inflicting injury. Every witness agreed that this fire escape with the drop ladder, when used for persons to descend thereon, was not only likely, but certain, to injure any one who might happen to be passing along the sidewalk at that particular place.

The negligence alleged in the petition on which the jury found for plaintiff is that said fire escape was negligently and carelessly constructed in that it protruded over the sidewalk, and was so constructed that, when persons proceeded from said building down same and stepped on the part called the drop ladder, the same would automatically fall to the sidewalk to the injury of any one using the sidewalk at that place. In addition to a general denial the defense is that: (1) An ordinance of Joplin required fire escapes for buildings used as this one was and permitted same to project into the highway not exceeding four feet and permitting drop ladders such as this one; and (2) that this building was leased to and under the entire control of Jimmie Bronson a§ tenant, and that the persons who used said fire escape to plaintiff's injury did so without the knowledge, consent, or authority of defendant.

While the ordinance of Joplin mentioned requires fire escapes for buildings of this character, it no more than permits same to project into a public highway not over 4 feet and requires drop ladders only if the fire escape is so constructed that the lower balcony is more than 14 feet above the sidewalk or ground. This ordinance must be taken as merely permissive on the part of the public and municipality. Streets and sidewalks are primarily and essentially maintained for travel thereon, and ordinarily a municipality cannot grant such a use of a street as makes it dangerous and unsafe, and "any object in the street or sidewalk, under it or over it, which without notice or warning to the public is likely to cause injury to a person using the street or sidewalk, is certainly negligently maintained." 28 Cyc. 873, also pages 859 and 861.

Nor do we think that the owner of a building abutting thereon has any right at common law to maintain even so necessary a thing as a fire escape over, and when in use violently descending on, a much-used public sidewalk. The owner of property must subordinate its use to the safety of the public. Defendant could not have used this building to store dynamite therein because of its being in a populous city, and it may be that it was so situated that it could not safely, and therefore should not, have been used as a theater because of the inability to have proper fire escapes and at the same time not endanger the use of the sidewalk. Such fact in no way excuses a structure dangerous to those using the sidewalk.

Whether one injured as plaintiff was by the use of the fire escape in case of fire in defendant's building could recover is not before us. Here there was no such emergency. Nor can we say that on this occasion there was such an unauthorized use of the fire escape by those descending thereon that defendant cannot be held to have reasonably anticipated same as likely to happen. The evidence shows that a large door, open or easily opened, was there inviting in a way the people, especially when the house was crowded and the exit slow, to use this convenient way of getting out. The record discloses the use of no means of discouraging, warning, or...