Shaw v. Goldman
| Citation | 92 S.W. 165,116 Mo.App. 332 |
| Parties | SHAW, Respondent, v. GOLDMAN et al., Appellants |
| Decision Date | 02 January 1906 |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Horatio D. Wood Judge.
REVERSED.
STATEMENT--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 twenty feet wide and one hundred 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 board partition. The front room is about seventy 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, eight by six feet, which extends down to the bottom of the cellar, a distance of seven or eight feet. This shaft was unguarded on December 16, 1901 on which date plaintiff visited defendant's 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; 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;" 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; that there was a sign in large, plain letters over the wicket door upon which these words were printed: Four or five of defendants' employees 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.
Judgment reversed.
Seneca N. & S. C. Taylor for appellants.
The judgment should be reversed because the evidence undeniably shows there was no failure to exercise ordinary care on the part of defendant. Where there is no duty there can be no negligence. Where defendant owed a duty but did not owe it to the plaintiff, he cannot recover. 1 Shearman & Redfield on Neg. (5 Ed.), secs. 8, 9; 1 Kinkead's Commentaries on Torts, sec. 323; Turner v. Thomas, 71 Mo. 596; Henry v. Railroad, 76 Mo. 288; Barney v. Railway, 126 Mo. 372; Hicks v. Railway, 46 Mo.App. 304; Guffey v. Railway, 53 Mo.App. 462; Pierce v. Whitcomb, 48 Vt. 127; Schmidt v. Bauer, 22 P. 256 (Sup. Ct. Cal., 1899); Parker v. Pub. Co., 69 Maine 179; Victory v. Baker, 67 N.Y. 366; Murray v. McLean, 57 Ill. 378; Oil Co. v. Morton, 70 Tex. 404; Faris v. Hoberg, 134 Ind. 296; Frank v. Shopman, 41 Minn. 366; Armstrong v. Medbury, 67 Mich. 250; Madil v. Berkey, 76 Mich. 435; Zoebisch v. Tarbell, 10 Allen (Mass.), 385. The judgment should be reversed because the evidence conclusively shows without contradiction that the immediate cause of plaintiff's injuries were occasioned by his own negligence. The authorities already cited undeniably show that if a person entering a store on business departs from the usual ways of ingress and egress or strays into a dark room and falls into an elevator shaft, he is guilty of negligence contributing to his injury, and he cannot recover. In every case where obviously plaintiff's own negligence directly contributed to his injury, he cannot recover. Milburn v. Railroad, 86 Mo. 109; Hudson v. Railroad, 101 Mo. 30; Beach on Contributory Neg., sec. 56; Turner v. Railroad, 74 Mo. 603; Kelly v. Railroad, 75 Mo. 138; Powell v. Railway, 76 Mo. 80; Molloy v. Railway, 84 Mo. 270; Taylor v. Railway, 86 Mo. 457; Hite v. Railway, 130 Mo. 132; Ottling v. Kahn, 134 Mo. 497; Gannon v. Gas Co., 145 Mo. 545; Haven v. Railroad, 155 Mo. 216.
John J. O'Connor for respondent.
The defendant's instruction demurring to plaintiff's evidence was, of course, properly overruled. Young v. Webb City, 150 Mo. 333; Bank v. Simpson, 152 Mo. 638; Keown v. Railroad, 141 Mo. 86; Gordon v. Burris, 141 Mo. 602. The occupier of a business house into which the public are invited by the occupant to trade with him for their mutual benefit is bound to keep the premises in a reasonably safe condition. O'Donnell v. Patton, 117 Mo. 13; Walsh v. McAllister, 15 Mo.App. 492; Carraway v. Long, 7 Mo.App. 595.
NORTONI, J. (after stating the facts).--
1. The statute (sec. 6435, R. S. 1899) is in no way involved in this case, but on the contrary the petition predicates on common law 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.
The law raises a duty or obligation in many instances...
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