S. H. Kress & Co. v. Markline

Decision Date25 February 1918
Docket Number19769
Citation77 So. 858,117 Miss. 37
PartiesS. H. KRESS & CO. v. MARKLINE
CourtMississippi Supreme Court

October, 1917

Division A

APPEAL from the circuit court of Lauderdale county, HON. R. W HEIDELBERG, Judge.

Suit by Mrs. Annie Markline, as administratrix of George H. Markline deceased. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

A. S. Bozeman, B. F. Cameron, Jr., Amis & Dunn and Watkins & Watkins, for appellant.

Baskin & Wilbourn, for appellee.



The appellee, Mrs. Annie Markline, as administratrix of the estate of Geo. H. Markline, deceased, filed suit in the circuit court of Lauderdale county against the appellant, S. H. Kress & Co., and Chas H. Haney, for damages for the alleged wrongful death of Geo. H. Markline, under the Acts of 1914, chapter 214, p. 280. The suit is filed for the benefit of herself as widow and for the four minor children of herself and deceased. The material allegations in the declaration are that on the 15th day of October, 1915, Geo. H. Markline went into the store of the appellant, a corporation engaged in conducting a mercantile business in Meridian, and having for sale articles of merchandise, and that the public generally was invited to come to its store to trade with it; that these goods, wares, and merchandise were displayed for sale on tables and counters and shelves in the store; that deceased went into the store of appellant for the purpose of purchasing some articles; that one of the clerks exhibited to him the articles he desired to inspect with the view of purchasing, and that while inspecting these articles he stepped or fell into an open elevator shaft, which shaft was located near the goods he was inspecting with the view to purchase; that the elevator shaft opened into the basement below; that the deceased fell into this opening, which the appellant carelessly and negligently caused to be left open without any guard, railing, covering, or warning as to its existence; that deceased had no notice or knowledge of the existence or condition of the elevator shaft; that the elevator shaft was four or five feet wide, and that the distance from this floor to the basement was eight or twelve feet; that the floor of the basement was a hard concrete floor; that, by reason of the direct and proximate cause of the negligence of appellant in maintaining this elevator shaft as it did, deceased fell to the floor of the basement and received serious injuries, which resulted in his death within about eighteen hours; that he suffered excruciating pain before death; that he was forty-four years old, with an expectancy of twenty-four and one-half years, was in good health, and was earning $ 1,800 a year. The amount of damages laid in the declaration was $ 50,000. The deceased left surviving him a wife and four minor children. To this declaration a plea of the general issue was filed by both defendants.

Notice was given under the general issue that defendants would prove that the elevator shaft into which the deceased fell was a freight elevator, used only for the transportation of goods, wares, and merchandise, and not used for transporting persons or passengers; that it was located in an out-of-the-way place in the store, where no one but the servants and employees of the defendant were expected or invited to go; that the place was well lighted about the elevator shaft, so that persons of ordinary eyesight could easily and readily see whether or not the shaft was open or closed and all of the dangers incident thereto, if any; that on the door of the elevator shaft was a sign warning all persons of danger; that the deceased while a customer in the store, without any invitation and without any necessity for so doing, well knowing the risk and danger incident thereto, went behind the line of counters to a point in front of the elevator door, and thereby voluntarily exposed himself to the risk and danger of injury; that in so doing he acted for purposes of his own, at his own risk and upon his own responsibility, and without any authority or invitation from the defendants so to do; that deceased in so acting also negligently contributed to his injury which negligent conduct on his part was the proximate cause of his injury. The jury returned a verdict against the appellant, S. H. Kress & Co., in favor of the appellee in the sum of $ 25,000. A peremptory instruction in favor of the defendant Haney was granted in the lower court. Judgment was accordingly entered against this appellant, from which judgment this appeal is prosecuted.

The uncontradicted testimony showed that the appellant, S. H Kress & Co., conducted, in the city of Meridian, a store commonly termed a 5 and 25 cent store, having for sale therein and selling to customers articles of various kinds and descriptions ranging in in price from 5 to 25 cents. It occupied in its business three floors of a building, the cellar, the main floor for the use of customers, and an upper floor. In the cellar and upper floor were kept merchandise which from time to time was brought to the main floor principally by use of a freight elevator located in the southwest corner of the store. This elevator was for the use of employees only. It was operated by ropes in the nature of an endless chain. It could be moved either up or down by pulling on these ropes on any one of the three floors. If the elevator were on the main floor and a person on the upper floor wanted it, he would pull it up by pulling on the ropes, and vice versa. The elevator door on the main floor slid up and down on pulleys or ropes just as a window does. The door was of wood, about six feet high, and the opening extended to the floor. It was about four or five feet wide. The elevator was almost noiseless in its operation. Just north of the elevator were some steps leading up into an office. Immediately east of the steps, and about two and one-half or three feet therefrom, was a counter in the store. The distance from the west end of this counter to the elevator door is not exactly shown in the record, but is approximately six feet. There is an aisle running from the north of the store due south, passing the office steps and by the counter referred to, which leads to the south end of the store. In this south end of the store, and at the termination of this aisle, are three shelves, on the bottom two of which the appellant had stored at the time of the injury various kinds of jardinieres. The steps leading up into the office take up about half of the width of the aisle, leaving this aisle at its narrowest place, namely, between the end of the counter and the bottom of the steps, about two and one-half or three feet wide. It was to this counter that the deceased came upon the day of his death for the undisputed purpose of purchasing some jardinieres. There are in the store a number of counters, and on these counters are displayed various articles of goods, wares, and merchandise for inspection of customers and for sale. The elevator door extends almost from the steps south to the shelves upon which were displayed the jardinieres. On the door of the elevator were two signs, reading as follows: "This elevator is for freight only. All persons except the operator in charge are strictly forbidden to ride on same. This order cannot be waived by any employee;" and "Danger!" The door of the elevator opens on the aisle above mentioned. This aisle is perfectly level through the entire length of the store. There was no gate or warning sign of any kind warning or prohibiting customers from going between these steps and the end of the counter and to where the jardinieres were stored or displayed. The uncontradicted testimony showed that the deceased came to this counter and stopped at a point about ten feet from the end nearest the office steps. He asked the clerk to show him some jardinieres. She showed him one, and he asked that she get a ruler to measure it. She placed the jardiniere on the middle shelf near the elevator door, and went to the hardware counter, about thirty feet away, to get a ruler. At this time the elevator door was partially open, the opening being from three to three and one-half feet from the bottom of the floor. The elevator was there, the floor of same being on a level with the floor of the store. This clerk noticed that the door was open, but did not call the deceased's attention to it. At that time he was probably sixteen feet away from the door. The testimony shows that the deceased's visit to the store was for the purpose solely and alone of buying from the appellant some jardinieres. The clerk was gone just a few minutes, probably five or six. When she returned the deceased had disappeared. It was between twelve and one o'clock when the deceased came into the store. The uncontradicted testimony further shows that a few minutes after twelve o'clock an employee of the store brought down from the upper floor some merchandise to be taken out of the elevator. It was his time to go to lunch, and that he left the goods in the elevator, and attempted to pull the door down, and went on out to his lunch. He only pulled the door about half down, leaving an opening of three or three and one-half feet as stated. While the clerk was gone for the ruler to measure the jardiniere a clerk on the upper floor pulled the elevator up to that floor. He states that he tried to ascertain before moving whether or not the door on the main floor was closed. He took the goods out of the elevator, put some more in, and returned with them to the main floor. He thinks this took him about five minutes. Shortly after he reached the main floor he and the clerk who had been waiting upon...

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