Wilkinson v. Webb-Carter Shoe Co.

• Decision Date: 05 December 1930
• Docket Number: 6940.
• Citation: 233 N.W. 291,57 S.D. 458
• Parties: WILKINSON v. WEBB-CARTER SHOE CO. et al.
• Court: South Dakota Supreme Court

233 N.W. 291

57 S.D. 458

WILKINSON v. WEBB-CARTER SHOE CO. et al.

No. 6940.

Supreme Court of South Dakota

December 5, 1930

Appeal from Circuit Court, Brown County; W. N. Skinner, Judge.

Action by William Wilkinson against the Webb-Carter Shoe Company and another. From a judgment on a directed verdict for defendants, and an order denying a new trial, plaintiff appeals.

Affirmed.

Van Slyke & Agor, of Aberdeen, for appellant.

Williamson Smith & Williamson, of Aberdeen, for respondents.

BROWN P. J.

At the time material to this action, defendant, D. H. Carter, a resident of Illinois, owned a two-story brick building facing west on Main street in the city of Aberdeen. Adjoining it on the south, with a party wall between the two buildings, was a building owned by Aberdeen Hardware Company. Access to the second story of both buildings was by a stairway from Main street in front between the two buildings. The ground floor and basement of the Carter building was leased to defendant Webb-Carter Shoe Company. The entire second story was leased to the Odd Fellows' Lodge. In the front or west end of the second floor five rooms were partitioned off, in three of which the janitor, employed by the Odd Fellows, lived, the fourth was occupied as a cardroom, and the fifth as a kitchen, by the Odd Fellows. The remainder of the second story was occupied as a lodgeroom. The second story of the Aberdeen Hardware Company's building was occupied as a Legion Hall by the American Legion. The Odd Fellows' lease, in addition to granting the use of the entire second floor, expressly provided that the lessee should have the right to the use of the entrance and stairway from the front of the building to the rented premises for the purpose of getting to and from said premises. It further provided that the lessee should have the right to sublet the premises or any part thereof to other lodges for lodge purposes. The lessor agreed to furnish heat for the premises from September 1st until May 1st following in each year. In the east end of the building there was a freight elevator shaft leading from the second floor to the basement and situated so that the partition wall if extended would have passed through the center of the elevator shaft; one-half of the elevator shaft being a projection into the Legion Hall, and the other half a projection into the Odd Fellows Hall. A door in each projected part gave access to the elevator from the Legion Hall on one side and from the Odd Fellows Hall on the other side. The walls of the projection reached the ceiling entirely inclosing the elevator shaft. Inside the door in front of the elevator shaft on the Odd Fellows' side there was also a gate that could be raised and lowered, and when raised, could be rested on a bracket and thus left open. This gate had been continuously up and never lowered for at least two years prior to the accident hereafter mentioned. Fred Schuneman was janitor for the Odd Fellows, and was employed by Carter, who was vice president and one of the directors of Webb-Carter Shoe Company, to tend the furnace in the basement, and used the freight elevator in going from the second floor to the basement to tend the furnace. The Odd Fellows had subleased the hall for one night a week to the Knights of Pythias; the sublease having been made on behalf of the Knights by plaintiff, who was master-at-arms and trustee of the order at Aberdeen. Plaintiff was present at a meeting of the Knights two or three weeks prior to the occasion on which he sustained the injuries for which this action is brought. Some disturbance was then caused by boys playing and calling to each other in the Legion Hall. To stop this, Ed Glau, Chancellor Commander of the Knights, twice left his chair and went to the door leading to the elevator, and, opening it, requested the boys to be quiet. The noise continuing, he went a third time, passing across the elevator, which was in place, and into the Legion room, and asked the elder persons there to keep the boys quiet. Plaintiff saw Glau disappear through the door on this latter occasion, but says he did not see beyond the door in the Odd Fellows Hall, and claims that he did not know there was any elevator or shaft there. On the evening of January 24, 1928, another meeting of the Knights was to be held, and plaintiff again was present. When he...