Selby v. McWilliams Realty Corp., 42603

• Decision Date: 01 April 1963
• Docket Number: No. 42603,42603
• Citation: 151 So.2d 596,246 Miss. 568
• Parties: Donald C. SELBY v. McWILLIAMS REALTY CORPORATION.
• Court: Mississippi Supreme Court

Page 596

151 So.2d 596

246 Miss. 568

Donald C. SELBY v. McWILLIAMS REALTY CORPORATION.

No. 42603.

Supreme Court of Mississippi.

April 1, 1963.

S. H. Roberson, Clarksdale, for appellant.

Brewer, Brewer & Luckett, Clarksdale, for appellee.

ARRINGTON, Justice.

The appellant, Donald C. Selby, plaintiff below, appeals from a judgment of the Circuit Court of Coahoma County sustaining a demurrer of defendant-appellee to the amended declaration. The appellant declined to amend his declaration and final judgment was entered dismissing the suit.

The appellant, an adult resident citizen of Coahoma County, filed his amended declaration against appellee alleging that prior to and on December 26, 1959, he had the distributorship for the Commercial Appeal in the City of Clarksdale; that a number of appellant's customers were tenants in a seven-story office building owner and operated by appellee; that upon entering said building there is a small foyer or entrance hall, on one side of which are steps leading up to the several floors, and on the other side two power elevators; that in the ceiling of the entrance hall there is a light and also a light at the first landing of the stairs; that appellee retained the sole control over the elevators, steps and foyer, all of which were used in common by all tenants, their customers, visitors and business associates; that several months prior to December 26, 1959, an employee of appellee showed appellant how to open the doors to the elevator in order for him to place the papers of the tenants inside the elevator; that this procedure for delivering papers was carried on daily for several months by appellant with the knowledge and consent of the employees of appellee.

The declaration further alleges that at about 2:30 A.M. on December 26, 1959, appellant entered the building for the purpose of leaving the morning papers for the tenants of appellee. The lights in the entrance hall were off and the hall was in total darkness. Appellant opened the door to one of the elevators and attempted to place the papers inside. On account of the complete darkness, he was unaware that the elevator had not been left on the first floor and that the door would open when the elevator was not on that floor. He attempted to place the papers on the floor of the elevator, and, in so doing, he fell approximately five feet to the bottom of the unlighted elevator shaft and suffered serious injuries, 'which injuries were caused by the negligence of defendant in failing to have proper and adequate lighting, both in the foyer and in the elevator shaft, and in failing to have a proper safety or locking device which would prohibit the doors to the elevator shaft from opening if the elevator was not at the floor of the building. Had either the foyer or the elevator shaft been lighted as they should have been, then plaintiff would have been able to see that the elevator was not on the first floor and would have incurred no injuries. Had a proper safety or locking device been on the door, plaintiff would have been unable to open the elevator doors when the elevator was not on that floor or would have been warned that the elevator was not on the floor.'

The demurrer which was interposed to...