State v. Trimble

• Decision Date: 22 December 1925
• Docket Number: No. 26516.,26516.
• Citation: 279 S.W. 60
• Parties: STATE ex rel. COX v. TRIMBLE et al., Judges.
• Court: Missouri Supreme Court

279 S.W. 60

STATE ex rel. COX v. TRIMBLE et al., Judges.

No. 26516.

Supreme Court of Missouri, Division No. 2

December 22, 1925.

Motion for Rehearing Denied January 6, 1929.

Certiorari to Kansas City Court of Appeals.

Original proceeding by the State, on the relation of William H. Cox, for certiorari to Francis H. Trimble and others, Judges of the Kansas City Court of Appeals. Writ quashed.

S. H. Ellison, M. D. Campbell, and Chas. E. Murrell, of Kirksville, for petitioner.

Grover, Tipton & Mills, of Kansas City, and Higbee & Mills, of Kirksville, for respondents.

BAILEY, C.

This is an original proceeding in this court for certiorari to have brought up the record of the Kansas City Court of Appeals in the case of William II. Cox, Respondent v. James D. Bondurant, Sr., et al., copartners doing business under and by the name of Palace Bakery, Appellants, decided by the Court of Appeals in May, 1925. Said cause was tried in the circuit court of Adair county, Mo., resulting in a judgment in favor of relator, Wm. H. Cox. in the sum of $3,500. An appeal was granted defendants to the Kansas City Court of Appeals, and the judgment in favor of relator was reversed. A motion for rehearing was filed in the Court of Appeals and overruled. Thereupon application was made to this court for a writ of certiorari to quash the record of said Court of Appeals in the above-entitled cause.

The opinion of the Court of Appeals was written by Trimble, P. J., in which all the members of said court concurred. He reversed the case on the ground that plaintiff, Cox, was guilty of contributory negligence which precluded a recovery. In disposing of the demurrer to the evidence, Judge Trimble has made an elaborate statement of the facts, which cannot well be abbreviated, and, hence, we make his statement of the law and facts a part of our opinion in order to consider the questions raised by relator at the conclusion of same. Without caption, said opinion reads as follows:

"Appeal from Adair circuit court.

"Plaintiff received some bruises and an injury to his left ankle when he fell into an elevator shaft on defendants' premises. He brought this suit for damages, and recovered a verdict and judgment for $3,500. Defendants have appealed.

"In Kirksville, Mo., defendants own a two-story brick business building with basement, in which they conduct a general bakery and creamery business. The west side or wall of said building abuts upon an alley, and against said west wall' a platform about 2 feet wide, 18 feet long, and nearly 4 feet high. The platform is on a level with the first floor of the building. Entrance from the platform into the building is had through a doorway in said west wall. Just inside the building and in this doorway is the elevator shaft, so that when the elevator -is at the first floor one can step through the doorway immediately from the platform onto the floor of the elevator. The latter was operated by electricity, and could be moved from the basement to the first and second floors. When it reached either the basement or the top floor it would stop automatically; but, in order to have it stop at the first floor, whoever was operating it had to pull a small control rope and put it into a slot or horseshoe shaped device. The north and south sides of the elevator shaft were boarded up solid to the top of the building. The east side of the elevator shaft was protected by a gate which automatically closed when the elevator was lowered or raised from the first floor. The west side of the shaft was, of course, the doorway in the west wall of the building; and in the summertime this doorway was protected by two wire screen doors; the doorway being 5 or 6 feet wide and 7 feet high. These doors were kept closed by means of stout springs, so that in entering from the outside platform to the elevator one must open one or both of said doors and hold them open until he steps inside, whereupon the screen doors would immediately close on account of their springs. Thus access to the interior of the building from the platform was had through the doorway and across the elevator when at the first floor, or if it were at the basement, the top of the elevator, which was covered with a heavy wire netting or mesh, afforded a means of going over it and through the gate on the east side to the interior of the building. However, when the elevator was thus at the basement, this top of the elevator was 2 inches or more above the level of the platform and first floor of the building.

"Defendants bought milk from various farmers, including plaintiff, which was delivered in the ordinary commercial milk cans, hauled by the farmers to this outside platform and taken by them through the doorway in the west wall to the place where the milk was received.

"For some time, perhaps a year, plaintiff had delivered milk by unloading his cans onto the outside platform, and, after placing the cans and himself on the elevator, he would start the elevator downward by giving the proper pull to the rope, and when the basement floor was reached the elevator would stop automatically, and the cans would then be taken off the elevator to the point in the basement where defendants received them. Plaintiff would then return to the first floor by getting upon the elevator and giving the rope the proper pull, which would start the elevator upward, and he would stop it at the first floor by pulling the control rope into the slot for that purpose. He made these deliveries and went over this route in this way daily.

"In the spring of 1922, defendant began receiving the milk somewhere in the interior of the building on the first floor, and access to the building from the platform was had through the above-mentioned doorway and across the elevator floor if it was at the first floor, or across the wire netting on its top if the elevator were in the basement. Plaintiff continued to deliver milk on the first floor in this way from the spring of 1922 until his injury, which happened on August 31, 1922, at 8:30 in the morning.

"Plaintiff drove his team of horses to the platform and unloaded his two cans of milk thereon. He then started to take them through the doorway into the building. He admits he was hurrying because he was somewhat late, and a man had driven up behind his wagon and was waiting for him to get out of the way. Plaintiff says he picked up one can with his right hand and started into the doorway by opening one of the screen doors with his left, pushing the door around and holding it open, while he turned around and with his right started to swing the can into the elevator and stepped in, but the elevator was not there and he fell to the basement below, a distance of about 12 through feet. He says as he turned to pick up the said can with his right hand while holding the screen door open with his left, this placed him with his back to the elevator and his face toward the alley, and that in this position he stepped inside, not backwards, but `sideways,' his right side going in first. He says he did not know which way he was looking, whether to the north or west into the alley, nor whether he turned his head with his body; that he did not stop to see where the elevator was, but simply grasped his milk can and walked in there without looking. He was asked:

"`Q. You didn't stop to see where the elevator was? A. No; I never stopped to see where it was.

"`Q. You simply grasped your milk can and simply walked in there? A. Yes, sir.

"`Q. And without looking? A. Yes, sir.'

"He gave the size of the doorway and screen doors as above stated, and said that when he opened the screen doors there was nothing between the elevator and outdoors, and that he had to open the screen doors and hold them open in order to get inside. He was further asked:

"`Q. Didn't you stop to look when you delivered milk there and started to walk in there? A. Not every time I didn't.

"`Q. I mean this particular time? I didn't.

"`Q. You didn't stop didn't.'

"He denied that, as he entered, his team was `fixing to start off,' and said his attention was not attracted to his horses, but admitted that he was `hurrying up to take my milk in,' as he was `mighty near late that morning.'

"The petition alleged the maintenance of the doorway and the elevator shaft and elevator as above described, and charged that it had long been the custom and practice of defendants to keep said elevator either at the bottom of the shaft so that persons entering the doorway could walk over the top of the elevator, or to keep said elevator at the first floor so that such persons could walk through and across said elevator, and plaintiff and other sellers of milk had for a long time, at defendants' invitation, delivered their milk through said doorway and through or over said elevator in this way; that at all the times when plaintiff delivered milk to defendants through said doorway prior to his injury, said elevator was kept so that he could either walk over and across it or through it, and plaintiff, relying on that practice and custom, believed said elevator was so kept and maintained and in said position at the time he was hurt.

"The negligence charged was a failure to keep Quaid building well lighted in and about said elevator shaft, whereby persons entering said doorway could not well see said shaft or the location of said elevator; also that defendants, prior to the time of plaintiff's entrance, negligently removed the elevator from its usual and customary location, leaving the elevator shaft open from the doorway to the bottom, and negligently failed to prevent plaintiff and persons so entering said doorway from falling down through said elevator shaft, and negligently failed to warn plaintiff that the elevator had been removed from its customary location so that he could not walk over, across, or through said elevator when delivering milk as said.

"The answer contained a general denial, and further...