Shortridge ex rel. Shortridge v. The Scarritt Estate Company
| Decision Date | 28 June 1910 |
| Citation | 130 S.W. 126,145 Mo.App. 295 |
| Parties | PAUL FEARSON SHORTRIDGE, by ELEANOR F. SHORTRIDGE, Guardian, Respondent, v. THE SCARRITT ESTATE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
Judgment affirmed.
Scarritt Scarritt & Jones for appellant.
Marley Vieregg & Grover for respondent.
(1) It was the duty of the Scarritt Building Company to anticipate danger and to protect persons in the building; because those who invite the public to become their patrons and customers assure their personal safety, and this duty extends to the tenants of the building and their customers. Such persons have a right to be protected, and it is the special duty of the building company to see to their personal safety. Mauzy v. Kinsel, 19 Ill.App. 572; Hayward v. Merrill, 94 Ill. 549. (2) The respondent was only required to exercise that degree of care which under like or similar circumstances would reasonably be expected of a boy of his years, capacity and experience, and whether he did or not was a question for the jury. Saare v. Railroad, 20 Mo.App. 211; Van Natta v. Railroad, 133 Mo. 13; Burger v. Railroad, 112 Mo. 249; Wynn v. Railroad, 91 Ga. 344; Cooper v. Railroad, 66 Mich. 261; McGuire v. Railroad, 37 F. 54; Campbell v. Railroad, 175 Mo. 161; Holmes v. Railroad, 190 Mo. 105; Holmes v. Railroad, 207 Mo. 166; Plumley v. Berge, 124 Mass, 57; Anderson v. Railroad, 81 Mo.App. 118; Fry v. Transit Co., 111 Mo.App. 333. (3) It is proper for the instruction as to measure of damages to include damage for humiliation due to disfigurement. Rosenkranz v. Railroad, 108 Mo. 9; Kennedy v. Transit Co., 103 Mo.App. 1; Schmitz v. Railroad, 119 Mo. 256; McDermett v. Severe, 202 U.S. 600; Express Co. v. Wahl, 168 F. 848; Heddles v. Railroad, 77 Wis. 231.
--Plaintiff, an intelligent and bright boy eleven and a half years old, received personal injuries in an office building owned and operated by defendant in Kansas City and alleges in his petition for recovery of damages, that his injuries were caused by the negligence of defendant. A trial before a jury resulted in a verdict for plaintiff for eight thousand dollar, but during the pendency of motions for a new trial and in arrest of judgment, filed by defendant, plaintiff filed a remittitur of four thousand dollars. The court afterward overruled the motions for a new trial and in arrest and rendered judgment for plaintiff for four thousand dollars. Defendant appealed.
Defendant built a large office building at the corner of Ninth street and Grand avenue in Kansas City and began receiving tenants before the building was entirely finished. Among these early tenants was Mr. Marley, one of plaintiff's lawyers, who rented office rooms in the west wing near its south end on the ninth floor. The building consisted of two wings, the directions of which lengthwise are north and south, joined together at their north ends by the main body of the building, the directions of which are east and west. The passenger elevators, four in number, are on the north side of the body of the building and midway between the wings. Access to Marley's office from the elevators was afforded by an east and west hall on which the elevators opened and which, at the ends, connected with and terminated at the respective hallways which, running north and south, divided and afforded access to the offices in the wings. The hallway in the west wing does not end at its junction with the main hallway but continues north 6 1-2 feet beyond the north line of the latter hallway and ends at the entrance to the freight elevator. This construction gives that elevator the appearance of being at the end of a small alcove but, to a person walking north along the wing hallway, the entrance to the freight elevator is prominent, since it closes the north end of the hallway and is in view until the turn into the main hall is made.
Plaintiff accompanied his mother to the offices of Mr. Marley. After transacting the business which brought her there, Mrs. Shortridge started to leave but at the door of the office remembered something she had forgotten to say and stopped for further conversation. She told plaintiff to go and signal an elevator for her, meaning, of course, one of the passenger elevators. In going north, plaintiff had his attention attracted by the moving of the cables of the freight elevator which he could see through openings in the elevator door. Instead of turning to go to the passenger elevators, he went to the door of the freight elevator and watched its operation through the openings mentioned. The temporary wooden top of the car appeared and passed beyond the openings, but the car stopped with its floor below the floor where plaintiff was standing. Supposing that the car was coming to the latter floor, plaintiff put his head into one of the openings to see what was on the car. It appears that the operator stopped the car where he did in obedience to a signal to return to the eighth floor which had been passed a few feet. At the moment plaintiff inserted his head into the opening the car started to descend and plaintiff's head was caught by the descending top and badly crushed against the edge of the door at the bottom of the aperture. Fortunately, plaintiff's life was saved by the thoughtfulness and quickness of the operator who, on hearing or feeling the impact of the blow, immediately stopped the car. The entrance to the freight elevator consisted of double doors in each of which was an opening intended to be filled by fire glass. Each opening or panel was 34 1-2 inches vertically by 12 1-2 inches across, and its bottom was 45 inches above the bottom of the door. The glass had not yet been placed in these panels and it was through one of them that plaintiff thrust his head.
The negligence averred in the petition is that "this plaintiff was so injured as aforesaid by the carelessness and negligence of the defendant, in that it maintained said elevator shaft and said double doors and operated said elevator, in the manner and in the conditions aforesaid, there and then well knowing that the said elevator, both standing still and in motion, and said elevator shaft with the aforesaid doors open and unguarded as aforesaid, were attractive, luring and enticing to children of the age of this plaintiff, and that such children were liable to be injured by reason thereof."
The two main propositions advanced by defendant in support of its contention that the jury should have been instructed to return a verdict in its favor are, first, that the evidence fails to disclose negligence on the part of defendant and, second, that it does show that the injury was caused by negligence in law of the plaintiff.
If plaintiff were an adult, there could be no question about the soundness of defendant's position with respect to both of these propositions. The only motive that could have prompted anyone to put his head into one of the openings left in the elevator doors would have been that which actuated plaintiff--mere curiosity. An elevator shaft is a place of danger and for a person voluntarily to thrust his body into the path of the car would be negligence as a matter of law that would deprive him of any cause of action on account of the resultant injuries. In leaving the panels open, defendant was under no duty to anticipate that a mature person might do a thing so foolish; and, since it is axiomatic in the law of negligence that there can be no negligence where there is no breach of duty (Witte v. Stifel, 126 Mo. 295, 28 S.W. 891), it follows that plaintiff would have no negligence of defendant on which to found a cause of action, were it not for the fact that plaintiff is not an adult but, when injured, was a boy of tender years, whose rights and responsibilities with respect to the question of the duty defendant owed him as well as of the question of his own negligence are to be measured by the principles and rules pertaining to persons of immaturity.
The views expressed were recognized as sound by counsel for plaintiff who, in drafting the petition, planted the cause of action squarely on the breach of a duty defendant owed children that might be brought into the building. The first and, perhaps, the most vital question in the case is whether defendant, in the exercise of ordinary care and prudence should have anticipated that the safety of children might be endangered by the invitation to the public to use the building before the panels in the elevator doors had been filled. It is conceded that since defendant retained control over the elevators and halls of the building, it owed plaintiff the duty "to see that the passenger elevators . . . were in a reasonably safe condition and carefully operated and to see that the public halls and corridors of the building through which plaintiff must pass to reach said lawyer's office were in a reasonably safe condition for a person properly using the same," but it is argued that as a proper use of the halls and corridors did not require plaintiff to go near the freight elevator, defendant was not bound to anticipate that plaintiff would make an improper use of the public passageways.
This was a large office building tenanted chiefly by lawyers and real estate agents. Its public halls and corridors were not intended to be used by children as a playground nor was it to be thought that small children would go into the building at all except in company with grown persons. But we think the triers of fact were entitled to indulge the conclusion that a reasonably careful and prudent person in the situation of defendant should have thought of the likelihood of small children being brought into the...
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