106 Mo. App. 657 | Mo. Ct. App. | 1904
This is an action brought by plaintiff against defendant, a business corporation, to recover damages for personal injuries claimed to have been received by the former on account of the negligence of the latter. The defendant occupies for the transacting of its' business, which is that of wholesale dry goods, a large building several stories iñ height situate in Kansas City, Missouri. The plaintiff on and some time before September 27,1900, was and had been
On the day of the injury the plaintiff used the elevator until lunch time noticing nothing unusual in it or the gate or any attachment to either. After plaintiff had returned to his work he had picked up a truck load of goods on the fourth floor and was ready to descend to the packing room in the basement but he found the elevator not at that floor. He testified that in order to move it there he reached over the gate, took hold of the elevator rope and pulled down, and that this started the elevator up and as it reached the floor on which he was standing the gate moved up some distance when he reached under it to catch hold of the rope in order to stop it; and while in that position he was struck.on the head by something. As to exactly what struck him he seems not to have been entirely certain. He at first testified that it was the gate, and afterwards that he did not know what it was. No one was present when the injury occurred but he was found lying in an unconscious condition on the elevator floor with the gate down. He was severely hurt.
An examination of the elevator and gate disclosed that the rope which ran from the pulley down to the gate had been broken between the top and bottom of the latter. It was a clean transverse break of it. "When the gate was put in the knot was tied in the end of the rope-so as to give it the length required for the proper operation of the gate. The expert testimony was that if too
The negligence specified in the petition was that the rope attached to the gate, and which lifted and lowered it, was too short and not of sufficient strength or thickness to properly run and support it; that said rope was made of weak and improper material, and was improperly adjusted, all of which was well known to defendant, or by the exercise of ordinary care could have been known by it.
The defendant complains that the trial court erred in refusing to give its instruction declaring to the jury that upon the pleadings and evidence the plaintiff was not entitled to recover.
The evidence is undisputed that the rope by which the gate to the elevator was moved was comparatively new and of good material — such as was generally used for that purpose, and that it was properly adjusted;
In an action of this kind the burden is on the employee to establish negligence on the part of the employer and due care on his part. The presumption is that the employer has discharged his duty in providing for him suitable appliances for the work and in keeping them in that condition. And when this is established the employee is met with the further presumption which, too, must be overcome before he can recover and that is that he assumed all the ordinary and usual hazards of his employment; and to overcome this last presumption he must prove that the injury did not arise from obvious defects in the appliances, or from a hazard incident to the employment. Wood on Master & Servant, section 382, and authorities cited in defendant’s brief. It devolves on the employee as a condition precedent to his right to recover that he affirmatively prove the non-fulfillment or non-performance of some duty or obligation owing him by his employer. Gurley v. Railroad, 104 Mo. 223; Yarnell v. Railway, 113 Mo. 570; Dowell v. Guthrie, 116 Mo. 646. In the absence of affirmative proof of negligence the simple fact of an
It must be shown not only that there was a defect in the place or appliance which caused the injury but that it was known, or could have been known to the employer had he exercised ordinary care; and in the absence of proof of either of these essentials there can be no recovery. Hester v. Packing Co., 84 Mo. App. l. c. 454; Breen v. Cooperage Co., 50 Mo. App. 202; Burnes v. Railway, 129 Mo. 41; O’Malley v. Railway, 113 Mo. 329; Sullivan v. Railway, 107 Mo. 66; Covey v. Railway, 86 Mo. 635; Porter v. Railway, 71 Mo. 79. As said in Breen v. Cooperage Co., ante, “it was for plaintiff to' trace the cause of the accident to the defendant’s negligence and not for the defendant to show the cause of the accident. It is not for defendant to account for the accident on a theory consistent with due care, but for plaintiff to account for it on the theory inconsistent therewith . . . such theory must not rest upon mere conjecture, hut either upon direct proof or proof of facts establishing a direct and immediate connection between the defects and accident complained of by logical inference.” And similar in effect is Jewett v. Railway, 50 Mo. App. 547; Moore v. Railway, 28 Mo. App. 622; Epperson v. Cable Co., 155 Mo. 346. Negligence can not be assumed from the mere fact of an injury (Yarnell v. Railway, ante) nor that the case is one for a jury from the mere fact that an injury has occurred. Murphy v. Railway, 115 Mo. 119.
As to whether or not the rope attached to the elevator gate was made too short by reason of the tying of a second knot in it, or by whom the knot was tied, or as to how long before the injury, or as to whether or not the gate had been in the habit of striking the pulley, we may refer h> the following testimony of the plaintiff himself:
*665 “Q. Do you recollect about a pulley, an iron pulley, that was above the safety gate? A. I do. Q. Do you recollect anything about the gate striking or not striking that iron pulley when it raised up? A. Why, I recollect of the noise the gate would make as it would go up. Q. In striking this pulley? A. Well, I. suppose striking the pulley. Q. Do you know whether or not it was in the habit of striking the pulley up there? .A. Yes, sir. Q. Did -you see it strike? A. No. I could hear it strike. Q. For how long a time before you got hurt had you been in the habit of hearing it strike this pulley? A. Oh, I don’t know. Q. Was there ever a time before that that it did not strike it? A. Not that I know of. Q. Now, Mr. Glasscock, do you know how that rope that broke was attached to the gate that hit you? A. Why, it went through a hole in the top of the gate and down through a cross-piece and a knot was tied to hold it there; the hole wa.s in the bottom piece, too, and it went through that hole. Q. And went through that hole? A. Yes, sir. Q. Now, how many knots were there in that rope to your recollection? A. There were two knots. Q. And how long had they been' there, to your recollection? A. I could not say; they had been there for quite a while. Q. Do you ever recollect a time when they were not there? A. No, I don’t know that I ever did.”
It is true the testimony elicited by defendant from other witnesses varied from that of plaintiff, but we can not notice such testimony in considering the defendant’s demurrer.
The fact, if it be a fact, that the rope was shortened from four to six inches by the second knot, and that the top of the gate previous to the injury was in the habit of striking against the pnlley, coupled with the further fact that a dent was found in the top of the gate after the injury where it would have been had it struck the pulley, justifies the deduction of the inference that the shortening of the rope by the second knot so weak
If we expunge from the record the testimony of plaintiff and look alone at the evidence of the defendant in relation to the time when the knot in the rope was first discovered, the working of the gate just prior to the injury, and the like, it would be difficult to conclude that it was derelict in any duty which it owed plaintiff; but this evidence like that for plaintiff was for the jury. It is true, as already stated, that no one witnessed the injury received by plaintiff, but the facts and circumstances shown in evidence were, we think, sufficient to justify the submission to the jury of the question as to the cause of the injury.
The plaintiff contends that the legitimate inference from the facts is, that the rope in question broke by reason of its shortness, and that consequently it was not as such a safe appliance. No doubt exists but what the evidence tends to show that the striking of the gate against the pulley did necessarily gradually impair the strength of the rope, and, as a matter of course, in time caused it to break. In such case, however, evidence of such gradual process would appear by more or less unevenness of the two ends of the broken parts. It is in
But accepting as true plaintiff’s statement that the rope had been too short for several months, during which time the gate was striking the pulley above, he was guilty of contributory negligence in not calling attention to the defect, for he must have known as a man of ordinary intelligence that under such condition the rope would gradually weaken and finally break. On his own evidence he was guilty of contributory negligence and ought not to recover for his injury. He ought not to be permitted to excuse himself on the flimsy pretext that he was not cognizant of danger. He was required to have • exercised his natural senses. Wheat v. St. Louis (Sup. Ct. Mo. not yet reported); Jackson v. Kansas City, decided by us but not yet reported. If the rope was too short and caused the gate to strike the pulley as he says it did, he must have understood at once that it was not working properly and he ought to have adjusted it himself. This he could easily have done as it was a very simple contrivance in that respect. A servant who sees a defect in the appliance furnished him by his master in his employment which he can easily and without skill remedy as well as his master and which he fails to do is guilty of contributory negligence and not entitled to recover. Beckman v. Brewery, 98 Mo. App. 555.
Cause reversed.