116 Mo. App. 154 | Mo. Ct. App. | 1905
In the tragic event which gave rise to this action eight' persons, among whom was the son of plaintiff, lost their lives. The event occurred January 13, 1904, at the defendant’s shoe factory on the corner of Eleventh and St. Charles streets in the city of St. Louis. Plaintiff’s deceased son, on the day he was killed, was between thirteen and fourteen years old. He was a son by plaintiff’s first marriage and his name was George Rottman. He had been working in the factory eight days. The factory building is seven stories high and an elevator plies between-the basement and the top floor. The elevator was operated by steam or electric power; by which is not disclosed. It was built for the carriage of freight; but in the'morning, at noon and at the quitting hour in the evening, the employees on the different floors were permitted to use it in going to and from their work. The elevator ran up and down in a shaft; it was strongly built of oak timbers and was somewhat in the form of a box car. As we understand, the elevator carriage or car had a doorway on one side, but no door attached to the car itself. The gates which closed the shaft and through which ingress and egress to and from the car were obtained, were stationary on the floors of the different stories of the building. This was true, at least, on the sixth floor where the disaster occurred. On that floor there was an open door or gate about six feet high, which gave access to the elevator shaft and was raised when the car was receiving or discharging a load and lowered when it was not. The gateway or opening into the shaft was twelve or fourteen feet high. The gate itself stood, when down, an inch or two from the floor. It was balanced by weights like a window sash; and was over-weighted, according to the estimates of witnesses, twenty-five pounds or more. That is to say, an upward
An ordinance of the city of St. Louis was introduced which required all power elevators to be in charge of persons not less than fifteen years old and of industrious and sober habits. This ordinance provided that whenever the owner of an elevator was notified by the city inspector of boilers and elevators that a person operating an elevator was incompetent to run it, or untrustworthy, the owner should at once replace the incompetent operator.
The foregoing was the substance of the testimony on which the court below directed the jury to return a verdict in favor of the defendant.
The petition accuses the defendant of negligence in the following particulars; first, operating the elevator while in an unsafe and dangerous condition to be used by passengers, and not providing a safe and suitable door; second, providing a gate at the sixth floor which was not such a one as was used on elevators carrying passengers and was unsuitable, dangerous and unsafe for that purpose because it could be opened from the outside; whereas, passenger elevators are commonly constructed so that their gates or doors cannot be opened except from the inside of the shaft; third, in having the gate so constructed that it could be raised when the elevator car was not even with the floor of the
There was no testimony that the elevator operator lacked skill or caution; but on the contrary the evidence went to show he was perfectly competent. He had been in charge of the machine a long time and had operated it well. Neither was there any testimony to show his retention in service was against the city ordinance or the will of the city inspector. No evidence was introduced to support' the averment that defendant had negligently omitted to give plaintiff’s son instructions regarding the use of the elevator or the dangers incident to its use. Nor was there proof that the shaft was improperly guarded, unless the gate we have described was defectively fastened, a point that will be discussed. When lowered the gate was high enough to prevent a person from falling into the shaft. It was stanch enough to withstand weight and pressure and completely blocked the entrance. The charges of negligence which plaintiff’s counsel contends the evidence had some tendency to support, were the lack of sufficient illumination about the elevator shaft and in the car, and failure to have the gate fastened so it could not be opened from the outside. In our opinion there was no substantial evidence to prove the illumination was deficient All the witnesses say there was plenty of light
That the deceased exercised due care for his own safety will not entitle plaintiff to damages for his death unless the negligence of the defendant was the proximate cause of his death. Therefore, we will examine the evidence with a view to ascertain if it conduces to show the defendant was guilty of any negligence. If it does, the next inquiry will be whether such negligence was the proximate cause of the accident in which plaintiff’s son lost his life. In weighing the evidence on the issue of defendant’s negligence, we must fix in our minds the degree of care incumbent on the defendant in the construction of the elevator gate; for unless there was some negligence in that respect, there is no case. Indeed, the only negligence charged in regard to the gate is that it ought to have been fastened by some ap:
McDonough v. Lampher, 5 Minn. 501, is exactly like the present case as to the immediate point. McDonough sustained a personal injury from a freight elevator in a factory. On arriving in the morning and leaving in the evening the employees in the building were permitted to ride on the elevator, but were not required to do so, as there were stairs in the factory. The trial court instructed the jury on the theory that in the construction and operation of the elevator the defendant was bound to exercise the care incumbent on carriers
In Wise v. Ackerman, 76 Md. 875, the same conclusion was reached on similar facts. The decision was that an elevator erected in a factory or warehouse and intended to carry goods and materials from one part of the building to the other, but which the employees of the establishment were accustomed to use for their own convenience, must be operated with ordinary care, considering the dangerous nature of the machine, in order to exempt the employer from liability for injury to an employee by the machine.
It should be kept in mind too that the law did not require the defendant to exercise minute care to supply its freight elevator with the various devices to insure safety that are requisite to a regular passenger elevator. More danger is necessarily incurred and, therefore, is to be apprehended, in riding on a well-made and managed freight elevator than on a passenger elevator; and this risk is assumed by one who rides on it. Such is the rule in regard to the risk of using freight trains for travel; and we see no reason why it ought not apply in the case of a freight elevator.
In McGee v. R. R., 92 Mo. 208, 217, the Supreme Court approved the doctrine stated in Thompson on Carriers of Passengers, that a railroad company is held to as strict accountability for the negligence of its employees in the management of a freight train with a caboose attached in which passengers are seated, as the law imposes on carriers of persons on passenger trains; but that a railroad company cannot be ejected to provide its freight trains with all the conveniences and safeguards against danger which may be demanded properly in trains designed solely for passengers. Applying that doctrine to the case in hand, we cannot hold, as plain
Machinery so secure that venturesome youths cannot be hurt by it has not been and cannot be devised. It is easy to see now that if the gate in question had been fastened on the inside so it could not have been opened from without, the persons who were killed would never have entered the shaft by raising the gate and passing under it. But a prudent mind would be unlikely, except by a happy conjecture or flash of divination, to expect such temerity; especially when assured of the security of the gate, by the use of it through years unmarred by an accident. Plaintiff’s counsel says it was shown by warnings the superintendent had given against raising the gate] that he anticipated that some employee might raise it and fall down the shaft. We have read the evidence repeatedly and find no support for this argument. The employees had been warned not to crowd about the gate; but there is no testimony regarding warnings to employees not to raise the gate from the outside when the car was away from the floor, and thereby open a trap into the shaft. All the evidence on this point, and there is but little, goes to prove that it was thought the habit of crowding around the gate entailed the risk of injury to employees in entering the car when it was present; not of falling into the shaft when it was absent. And the apprehension actually felt by the superintendent was one that would arise naturally, according to the association of ideas, from observing the constant behavior of the employees; whereas apprehension of them lifting the gate when the car was away, an imprudence never committed before the occasion in controversy, would not arise naturally. We hold that there was no evidence fairly warranting the inference of negligence on the part of the defendant in failing to' provide an automatic or interior gate fastening.
Since writing the foregoing we have read the authoritative and well-considered opinion of Marshall,
If one will visualize to his mental eye the tragedy in which the deceased perished, the proximate cause will at once appear. A group of twenty or more boys and young men had crowded around the gate, anxious to get aboard the elevator on the first trip in order the sooner to reach home. The elevator came to the floor where they were and the operator did not raise the gate; either because their pressure on it prevented, or because he thought it imprudent to raise it while the pressure continued. He so stated and ascended to the floor above. Three boys who were next to the gate lifted it a few feet from the floor, but not high enough to walk under without stooping. They and the others stooped and passed
In their customary employment the boys were fellow-servants of the deceased and defendant would not be liable for his death caused by their negligence. [McCarty v. Rood Hotel Co., 44 Mo. 397.] But plaintiff’s counsel insist they were not fellow-servants at the time of the accident, because not then attending to the master’s duty. We have ruled that defendant’s employees were servants while going to and from work on the floors as well as when at work.
Plaintiff’s counsel insists that, even though the negligence of the boys who raised the gate may have been one cause of the casualty, a concurring cause was the negligent construction of the gate and, therefore, defendant is liable. We have already held the gate was well constructed. But if the proof showed the contrary, we would not accept the proposition maintained by plaintiff’s counsel to be the law. Even if the gate was carelessly fastened, the raising of it by the three boys when the car was above, was an independent act of negligence not induced or set in motion by the defective construction of the gate, but merely rendered possible by it. In other words, if the gate was faulty in not haying interior fastenings, that fact was a condition which enabled the boys on the outside to raise it, but did not cause them to raise it; nor was their doing so a thing to be expected. Their motive was to get on the elevator quickly. The case has no resemblance to those in which defendants were held liable for exposing dangerous machinery where it was apt to attract very young children who had no conception of the risk of tampering
No plea of contributory negligence was interposed in the answer, but nevertheless, if the evidence introduced by the plaintiff, showed beyond controversy that the deceased was guilty of negligence contributing to his death, it was right to direct a verdict for defendant on that ground. [Milburn v. Ry., 86 Mo. 104; Chaney v. Railroad, 176 Mo. 598.] Nor does the boy’s age necessarily preclude the ruling. For aught that appears he was of average intelligence, and he had used the elevator long enough to know how it was operated. His stooping under the gate and entering the shaft without ascertaining, as he could have done easily, whether the elevator was there or not, strongly suggests negligence and respectable precedents exist for holding that notwithstanding his youth, such conduct prevents recovery —precedents whose facts were very like those in the case at bar; for the litigation grew out of injuries to boys who had stepped or leaned into open elevator wells. [Poindexter v. Paper Co., 84 Mo. App. 352; Mau v. Morse, 3 Colo. App. 359; Taylor v. Mfg. Co., 143 Mass. 470; Patterson v. Hemingway, 148 Mass. 94; Knox v. Car Co., 69 Hun 231; Diebold v. Baking Co., 72 Hun 403; Guichard v. New, 9 App. Div. (N. Y.) 485; Headford v. Mfg. Co., 23 Ont. 335.] In view of our previous ruling we find it unnecessary to pass on the question of the contributory negligence of the deceased.
Many decisions are cited in the briefs as pertinent to the case at bar. We have carefully examined them
The case of O’Brien v. Steel Co., 100 Mo. supra, is much like the present one, and therein it was held that no recovery could be had for the death of a boy, because he was familiar with the construction and operation of the freight elevator and accented whatever risk was incident to riding on it, provided it was managed with ordinary care. The boy was killed by leaning for
The judgment is affirmed.