Shaw v. Goldman

Decision Date02 January 1906
Citation116 Mo. App. 332,92 S.W. 165
PartiesSHAW v. GOLDMAN et al.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by Samuel Shaw against Morris Goldman and others. From a judgment for plaintiff, defendants appeal. Reversed.

See 81 S. W. 1223.

Defendants are engaged in the business of buying and selling furniture at Nos. 1102, 1104, 1106, Olive street, in the city of St. Louis. The ground floor of the building is divided into three rooms, each of which is about 20 feet wide and 100 feet deep. Communication between them is through an archway in the partition walls. No. 1102, or the east room, is divided east and west into two rooms by a boarded petition. The front room is about 70 feet deep and is used as a show-room. The back room is a storage and packing room. This back room, through which an elevator shaft extends, is connected with the front room by a small wicket door. Near this door is the elevator shaft, 8 by 6 feet, which extends down to the bottom of the cellar, a distance of 7 or 8 feet. This shaft was unguarded on December 16, 1901, on which date plaintiff visited defendants' store on business. He alleges (substantially) in his petition that he was directed by one of defendants' salesmen to go from the front room of No. 1102 through the wicket door to reach another part of the building, and that he was unaware of the existence of the elevator shaft, and, on account of the darkness, did not discover it when he entered the room, and without fault or negligence on his part he fell into the shaft and was injured. The answer was a general denial, and, further, that plaintiff's injuries, if any, were caused by his own negligence in entering the room through the wicket door, and in failing to heed a warning given him not to enter, and in failing to use ordinary care to discover the shaft after he had entered the room. The evidence shows that a few weeks previous to December 16, 1901, plaintiff bought an iron folding bed of M. J. Harris, one of defendants' salesmen. He directed that the bed should not be delivered until defendants were notified. He subsequently called at the store and directed the bed to be delivered, which was done, but on inspection he discovered that it was faulty, and on December 16th returned to the store and saw Harris about the bed. On his first visit plaintiff purchased the bed of Harris, and was taken by him back to the shipping clerk to make a payment on the same. The office of the shipping clerk was located in a room cut off the south end of No. 1106. To reach this office, Harris and plaintiff went through the front part of No. 1106 and entered the shipping clerk's room through a door in the partition near the west wall of the building. On the occasion of his second visit, he, accompanied by Harris, went a second time to see the shipping clerk. This time, as well as before, they entered his office through the same door in room No. 1106. On December 16th plaintiff returned to the store and called Harris' attention to the defect in the bed. Harris told plaintiff to come into No. 1102 and look at a bed that was similar to the one he had bought. They both went into this room and plaintiff pointed out the defect in the bed that had been delivered to him. Plaintiff's testimony is that Harris then said to him, "Go back and see the shipping clerk," and pointed to the partition. Plaintiff testified that, when Harris told him to go to see the shipping clerk, he (plaintiff) went in the direction of the door leading into the elevator shaft and passed Harris on his way, who was a couple of feet from him; that he went through that door, and his intention was to go through that room and on into the office of the shipping clerk; that he had noticed, when in the shipping clerk's office on a former occasion, that a door opened from that room into this elevator room; that he saw no sign over the wicket door warning him to keep out; that, having never been in the room, he did not know there was an elevator shaft in it; that it was dark in there, and after stepping into the room he stepped into the shaft and fell to the bottom and was injured. Harris testified that after showing the plaintiff the bed in No. 1102 he said, "We will have to see the shipping clerk to have this matter rectified," and said to plaintiff, "Follow me," or "Come with me and we will see the shipping clerk," and that he then passed through the archway into No. 1106, supposing plaintiff was following him. About the time he entered No. 1106 a customer called his attention from the plaintiff for a minute, and when he turned to see if plaintiff was coming he was out of sight, and he did not see or hear any more of him until he had fallen into the shaft. Harris is corroborated by one of the Goldman brothers and by a lady customer, who swore she heard Harris tell plaintiff to follow him, and also heard one of the Goldman brothers tell plaintiff to come on, that Harris was waiting for him. The accident occurred in the daytime. The plaintiff testified that the day was dark and foggy and the elevator room was dark. On the part of defendant, the uncontradicted evidence shows that the elevator room was used as a storage and packing room, and that customers were never taken or admitted into that room, and that there was a sign in large, plain letters over the wicket door, upon which these words were printed: "Positively no admittance. Keep out." Four or five of defendants' employés testified that at the time plaintiff fell into the elevator shaft there were four incandescent electric lights burning in the room, and it was "as light as day." The door admitting ingress to the elevator room from the shipping clerk's office was a double iron or fire door. At the conclusion of plaintiff's evidence the court refused an instruction to find for the defendants, and exception was saved. The verdict and judgment were for plaintiff. Defendants appealed.

S. N. & S. C. Taylor, for appellants. John J. O'Connor, for respondent.

NORTONI, J. (after stating the facts).

1. The statute (section 6435, Rev. St. 1899), is in no way involved in this case, but, on the contrary, the petition predicates on commonlaw negligence. It is fundamental that in every case involving actionable negligence there are of necessity three constituent elements to its existence: First. The existence of a duty on the part of the person complained against to protect the complainant from the injury of which he complains. Second. The failure of the defendant to perform that duty. Third. Injury to the plaintiff resultant from such failure of the defendant. Where these elements are brought together, they unitedly constitute actionable negligence. It is obvious that the absence of an affirmative showing of any one of these essential elements renders the complaint bad or the evidence insufficient. Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 261; Trask v. Shotwell, 41 Minn. 66, 42 N. W. 699; Barney v. Railway Co., 126 Mo. 372, 28 S. W. 1069, 26 L. R. A. 847; Yarnell v. Railway Co., 113 Mo. 570, 21 S. W. 1, 18 L. R. A. 599; Troth v. Norcross, 111 Mo. 630, 20 S. W. 297; Heizer v. Kingsland, etc., Co., 110 Mo. 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 482; Gurley v. Railway Co., 104 Mo. 211, 16 S. W. 11; Hallihan v. Railway Co., 71 Mo. 113; 21 Amer. & Eng. Ency. Law (2d Ed.) 460, 461, 470. The law raises a duty or obligation in many instances against one person and in favor of another, and it is well settled in numerous adjudicated cases that where premises are in the occupancy and under the control of a party and used by him as a place for the transaction of business, and persons are either expressly or impliedly invited thereto to trade, the proprietor owes to those entering therein or thereupon in response to such invitation the duty of ordinary care to keep said premises in a condition reasonably safe for the use of such parties so invited in the transaction of their business; and, if the premises are not in such reasonably safe condition, it is the duty of the proprietor to warn the customer of such unsafe condition if he knows of it and it is unknown to the customer. O'Donnell v. Patton, 117 Mo. 13-19, 22 S. W. 903; Kean v. Schoening, 103 Mo. App. 77, 77 S. W. 335; Welch v. McAllister, 15 Mo. App. 492; Carraway v. Long, 7 Mo. App. 595; Carleton v. Iron & Steel Works, 99 Mass. 216; Parker v. Portland Pub. Co., 69 Me. 173, 31 Am. Rep. 262; Pierce v. Whitcomb, 48 Vt. 127, 21 Am. Rep. 120; Sweeny v. Railway Co., 10...

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