Donovan v. Gay, 97 Mo. 440

Donovan v. Gay

97 Mo. 440 | Mo. | 1888

Black, J.

This is a suit for damages for injuries received by the plaintiff while at work in a seven-story office-building owned by Mr. Gfay, the defendant. At the time of the accident’, the building had not been entirely completed. Two elevators had been put in po'sition by Hale & Co. under contract with defendant. They were in operation and completed, save the mere matter of seeing that the machinery was- in working order. They were operated by two boys who were employed by the defendant, and were under the supervision of Mr. Butler, the defendant’s agent. Plaintiff-was a foreman for Mr. Gfuedrey, who had the contract *443for the carpenter-work, and, besides being a foreman, he worked as other carpenters under his charge. Some of the paneling around the elevator at the head of a pair of stairs on the second floor proved to be too low, and the carpenters were by the contractor directed to reconstruct it. This was about ten o’clock in the-forenoon, at which time the north elevator only was in operation. The evidence tends to show that Butler and the elevator operators knew and had been informed that the carpenter-work could not be done while the elevator was in operation. As the boy went up, ^plaintiff said to him, Now, you stay up there; I have got to put on this moulding.” To adjust the moulding, plaintiff had to and did put his head over and into the well-hole, and while in this position, the boy came down and the elevator hit the plaintiff and inflicted the injuries. There were as yet no signals attached, and there is evidence that the boy forgot the warning. There is also evidence tending to show that the plaintiff was wanting in the exercise of due care.

Special objections are made to the sixth, seventh, eighth, and ninth instructions, given at the request of defendant. It will be sufficient to set out the sixth ; it is in these words:

“6. If plaintiff requested the operator to stop operating the elevator, and the operator refused or failed to comply with his request to plaintiff’s knowledge, and after this plaintiff projected his head into the hatchway or well-hole of the elevator and was struck by the descending car, his own negligence precludes his right of recovery, unless from the evidence the jury find that after his head was so projected the operator either knew of his exposure, or, by the exercise of reasonable care, might have known it in time to have prevented his injury.”

This instruction starts out with a hypothetical case not supported by the evidence. There is nothing, certainly nothing in the abstracts, to show, or that tends *444to show, that the plaintiff lenew the boy intended to disobey the request to stop the elevator. With no proof of this fact the instruction is radically wrong; first, because it imposes upon the plaintiff the whole duty of avoiding the collision. All the parties knew that this carpenter-work was to be done, and that it could not be done with safety while the elevator was in operation. It was the duty of the defendant’s servants to use that care and caution which a prudent person would have used under like circumstances. The carpenter was not in the wrong in putting his head into the well-hole. He did that which his work required him to do, and it was the duty of defendant’s servants to care for his safety. It is true the boy was not under the orders of the plaintiff, but he was under the orders of Mr. Butler, the defendant’s agent, and it was the duty of both the operator and the agent to stop running the elevator when plaintiff made known his intention to perform the work.

The eighth instruction asserts the proposition that the operator of the elevator was under no obligation to stop running the elevator at plaintiff’s request, because there is no evidence that he was under the plaintiff’s orders. The duty to stop the elevator arose, not from any authority over the boy on the part of plaintiff, but from the known fact that plaintiff was about to perform the work which could not be done with safety with the elevator in operation.

Again, the sixth and seventh instructions are erroneous because they place the plaintiff’s case upon a principle of law that has no application to the circumstances in evidence. This is not a case of a trespasser, or of one who is in a position where he has no right to be, and whose presence the defendant’s servants are not bound to anticipate. The duty to protect this carpenter from injury arose when he made .known his intention to commence work. The instructions make the duty arise only after the defendant’s servants knew he *445had put his head in the well-hole. Such a proposition is absurd, when it is remembered that the operator of the elevator could not see the plaintiff, after he had passed the second floor on the upward trip, since the elevator car was between them.

It was the duty of the defendant to use such care and caution in the performance of the work as a reasonably prudent person would have used under like circumstances, and whether he did use that care or not is a question for the jury to determine under all the evidence. It should be determined, and determined only in the light of all of the evidence, and the case should go to the jury on this theory. These remarks condemn the sixth, seventh, eighth and ninth instructions.

The defendant insists that, inasmuch as the finding was for the plaintiff, the judgment should not be reversed, even if there is error in these instructions. The jury found for the plaintiff, and assessed his damages at one dollar, though it is shown that he laid out two hundred dollars in medical services in being cured. The question here, however, is not what we should do with the judgment had the case been tried on correct instructions. The instructions given for the defendant must have had the effect to force the jury to a compromise verdict, and since that verdict is, for all practical purposes, a verdict for the defendant, it should be set aside.

We see no error in overruling the motion to suppress the deposition of Calvert.

The judgment is reversed and the cause remanded

for a new trial.

Barclay, J., not sitting; the other judges concur.