165 Mo. App. 361 | Mo. Ct. App. | 1912
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
Defendant, an incorporated mercantile company, at the time of the injury complained of occupied the building numbered 616' Washington avenue, St. Louis. This building consists of six stories, the first and second of which alone defendant occupied, while the stories above were in possession of other tenants. The premises were equipped 'with an elevator, which was operated by defendant and used by all the tenants, for it communicated with each of the six stories of the building. Plaintiff is a plumber by trade, and at the time of his injury, together with Kraft, his helper, was in the employ of the Tumalty Plumbing Co., which had a contract with defendant for the installation of certain water pipes in the elevator shaft on the premises. It appears the elevator shaft was constructed with a double partition wall, and it was between these two walls that plaintiff was engaged in installing pipe at the time of his injury, though he stood on the bottom of the shaft proper and projected Ms head and arms within the space between the partition walls. While in this position, the elevator proceeded to the sixth floor, and one of the counterweights attached thereto, operating between the partition walls, descended upon plaintiff’s head and inflicted severe and permanent injuries. The elevator shaft extended about three feet below the first or ground floor of the building. Into this and between the partition walls therein an inch and a quarter water pipe was extended from the basement with the purpose to connect it by means of an elbow with another pipe of like size there standing perpendicularly. The elbow with threads therein was properly annexed to the pipe which entered horizontally from the basement between the partition walls, and plaintiff and his helper were engaged in the act of
For plaintiff the evidence tends to prove that defendant gave “strict orders” to the elevator boy when the work commenced about 8:00 o ’clock -in the morning that the elevator should not be moved by him during the day, for the reason plaintiff and his helper would be engaged in th¿ shaft throughout the time. Under these strict orders from defendant, the elevator was to .remain standing at the second floor, where, according to plaintiff’s evidence, it was when he entered upon the task which resulted in injury through the descent of the counterweight upon him. According to plaintiff and his witness, Kraft, the elevator had stood stationary at the second .floor from the time they commenced work in the morning until the movement which resulted in plaintiff’s injury at about 2:30' in the afternoon, unless it was during the lunch hour when plaintiff and Kraft were not present.
For defendant, the evidence tends to prove that, though such an order were given at eight o’clock in the morning, plaintiff thereafter assumed charge of the situation and directed the elevator boy to operate the cage between the second and sixth floors of the building. Besides the direct testimony of the elevator boy to the effect that plaintiff instructed him to operate the elevator between the second and sixth floors, numerous employees of the various tenants testified that such course was pursued throughout the day, for they had passed up and down thereon between the second and sixth floors. There can be no doubt that plaintiff, a servant in the employ of a contractor engaged in the task of installing the water pipes, was rightfully upon the premises as an invitee. This being true, no one can doubt that the law cast upon defendant the obligation to exercise ordinary care for plaintiff’s safety from injury by the elevator and counterweights while
There is an abundance of evidence on behalf of plaintiff tending to prove the elevator boy was acting for the master about his business and within the scope of his authority at the time of the injury and that he violated the express instructions of the master, or “the strict orders,” in moving the elevator from the second to the sixth floor; but though such be true, there is an abundance of evidence as well, on the part of defendant, tending to prove that the elevator boy was induced to operate the elevator between the second and sixth floors by plaintiff himself. In other words, there is direct and positive evidence to the effect that whatever the instructions were in the early portion of the day, plaintiff thereafter assumed command of defendant ’s servant, the elevator boy, and directed him to run the elevator between the second and sixth floors as he did at the time plaintiff was injured.
For the purpose of enlightening the jury with .respect to its duty* if it believed this evidence to be true, defendant requested the following instruction but the court refused it: “The court instructs you that, in order to render a master liable for the negligence of
Plaintiff’s first and third instructions are erroneous in that they omit to reckon with the feature of the case disclosed by defendant’s evidence above discussed. These instructions, after hypothesizing the facts revealed in plaintiff’s evidence authorize a recovery for plaintiff, provided he was exercising due care on his part, upon a mere finding that the elevator boy was defendant’s servant. Upon another trial, these instructions should be redrafted along the lines indicated therein at present, authorizing a recovery for plaintiff unless at the time of the injury the elevator boy is found to have departed from the master’s instructions and to have been pursuing, instead, the course marked out to him by plaintiff.
It will be unnecessary to consider further arguments advanced for a reversal of the judgment, and for that reason we decline to notice them. The judgment should be reversed and the cause remanded. It is so ordered.