193 Mo. 1 | Mo. | 1906
— This is an action for $35,000 ■damages for personal injuries received by the plaintiff on the 16th of July, 1901, by falling into an elevator shaft on the premises of the defendant, on Third and Delaware streets in Kansas City, Missouri. There was a verdict and judgment for the plaintiff for $7,500, and after proper steps the defendant appealed.
The Issues. The petition alleges that the defendant is a domestic corporation, owning and operating a manufacturing, mechanical and mercantile plant; that plaintiff, at the time of the accident, was in the employ of the defendant, as a common laborer, and was thirteen and a half years old; that, acting under orders of the defendant, and while engaged in his duties as such laborer, he proceeded to the fourth floor of the building for the purpose of loading horse collars upon a certain elevator in said building, and bringing the same, on the elevator, to a lower floor; that while so engaged, his duty compelled him to get into close proximity to the elevator shaft, and, while in the act of causing the elevator platform to arise from the lower floor by pulling on
The court withdrew from the jury all allegations of negligence on the part of the defendant except the charge that the defendant negligently and carelessly failed and neglected to protect the hatchway of the elevator hole on the fourth floor by good and sufficient safety catches, or strong guards or rails at least three feet high, and further instructed the jury that defendant was not guilty of negligence in that regard, if the jury believed from the evidence that the plaintiff was actually using the elevator at the time he was hurt.
The answer is a general denial, with a plea of contributory negligence and a plea of assumption of risks. The reply is a general denial.
The uncontroverted facts are, that the plaintiff was employed by the defendant, and had been so employed for four months before the accident, to wash horse collars, shine them and stamp them, and that his station for so doing was on the first floor of the building; he was a bright, intelligent boy; had worked at the Armour Packing House off and on for four months; had worked at Culp’s drugstore for about a month, and had worked at a candy store for about a month. In the rear of defendant’s old building there is a freight elevator extending from the basement to the fourth floor, which had no cage thereto but consisted of a floor or platform with the upright beams and rods usually employed in the construction of freight elevators. In the basement the elevator is not inclosed except by the rock wall at the back thereof. On the first floor the elevator is completely inclosed from the floor to the ceiling, and the entrance to the elevator is through a door which worked on ropes and pulleys like a window, and on the . inside, had a cross-beam guarding the opening when the door was raised. On the second floor the shaft was
Darcey Smith was the defendant’s foreman, and had employed the plaintiff. Fred Martin was the “straw boss” or assistant foreman, and was likewise the order clerk, and worked on the first and fourth floors. Fred Wagner was the straw cutter, and worked on the second floor, and John Teller was the padder, and worked on the third floor.
The orders were received by the order clerk about nine to half-past nine o’clock every morning. On the morning of the accident there were no unfilled orders left over from the day before. The various employees were engaged in cleaning and straightening the factory preparatory to the business of the day. They went to work at seven o’clock in the morning.
The case made by the plaintiff tends to prove that he went to work as usual about seven o'clock in the morning, and that Smith, the foreman, ordered bim to go to the fourth floor and get two dozen collars and bring them down on the elevator to the first floor; that he carried the collars, six at a time, from the racks on
The case made by the defendant tends to prove that it was no part of the plaintiff’s duty to bring collars from the fourth floor to the first floor; that Martin had, prior to that time, taken the plaintiff to the fourth floor, using the stairway in so doing, to have him
Neither Smith, Martin, Wagner nor Teller, who were in and around the elevator on the various floors of the bui-lding, had seen plaintiff on the elevator that morning, nor had they heard him fall in the elevator shaft. Smith had seen the plaintiff when he first reported for work that morning, but said that he did not order the plaintiff to go to the fourth floor for the collars, and that it was no part of the plaintiff’s duty to use the elevator, and that there were no orders left over from the night before, and the orders for the day had not then been received. Ted Noland, another employee, testified that he returned to the building about half-past seven o ’clock with some meat for the cat, and found the plaintiff at work at his place in the front of the store, and asked him where the cat was and he told him; that as he went to the back of the store to go upstairs, the plaintiff accompanied him as far as the elevator, where he left him, and that when he got up to the top of the stairs Martin asked him about the plaintiff. On the objection of the plaintiff, Noland was not permitted to say what answer he made or what information he gave Martin about the plaintiff. Munsell, another employee, testified that he arrived at the office late that morning and saw the plaintiff at his place on the first floor, about half-past seven o’clock; that within a few minutes thereafter he learned of the accident to the plaintiff.
None of the employees of the defendant, who were called as witnesses, saw the elevator on the fourth floor that morning. On the contrary, those who were called testified that it was in constant use on the third, second and first floors of the building from seven o’clock until the time of the accident, by Martin, Wagner and Teller.
The plaintiff testified that there was no one present when Smith, the foreman, gave him the order to go to the fourth floor and bring down the collars. The foreman Smith testified that he gave no such order to the plaintiff. The plaintiff further testified that Smith and Martin, the assistant foreman, had frequently sent him to the fourth floor for collars previously, but they both denied having done so. The plaintiff also testified that the foreman, Smith, as well as Kelley, had taken him to the fourth floor and instructed him how to run the elevator. The foreman, Smith, denied that any such thing had occurred. Kelley was no longer in the employ of the defendant and was not a witness. The plaintiff testified that other boys had also used the elevator. This was also denied by-the other employees of the defendant. The defendant introduced testimony showing that by actual measurement the space between the floor of the elevator and the inclosure of the elevator shaft was twelve and three-quarters inches. Over the objection of the defendant, the plaintiff was permitted to introduce in evidence the American Experience Tables of Mortality, and this is assigned as error. The plaintiff denied that he had ever played with the elevator, or been caught playing with it, or that he had been reported to the foreman therefor, or that the foreman had reprimanded him for so doing.
At the close of the plaintiff’s case, and again at the
I.
The first error assigned is the ruling of the trial court in overruling the demurrers to the evidence.
This is an action under section 6435, article 17, chapter 91, Revised Statutes 1899, relating to factory inspection in cities of over 5,000 inhabitants. That section provides as follows: “The openings of all hatchways, elevators and well-holes upon every floor of every manufacturing, mechanical or mercantile or public building in this State, shall be protected by good and sufficient trapdoors or self-closing hatches or safety catches, or strong guard-rails at least three feet high, and all due diligence shall be used to keep such trapdoors closed at all times, except when in actual use by the occupant of the building having the use and control of the same.”
The petition is bottomed on this section of the statute, describes the defendant’s place of business as a manufacturing, mechanical and mercantile plant, and charges the negligence of the defendant to be a failure to protect the hatchway by good and sufficient trapdoors or self-closing hatches or safety catches or strong guard-rails at least three feet high.
The theory upon which the plaintiff tried the case and upon which the plaintiff’s instructions are based, is that the defendant did not use ‘ ‘ all due diligence” to keep the guard-rail closed when the elevator was not in actual use, using the exact language of the statute, “all due diligence,” and by instruction three declaring that that term meant, such care and caution as reasonably prudent persons would exercise under the same or similar circumstances.
Section 6435, upon which this action is based, is section five of the Act of 1891 (Laws 1891, p. 159) the
The language of the section, together with the context and the other accompanying provisions of the act, clearly demonstrates that the lawmakers had in mind provisions for the safety of the employees in large factories, and that the section here involved was intended to provide that elevator shafts should be closed on every floor of the building while the elevator was not in use, so as to prevent persons working around the same in the factory from falling into such elevator shafts. It was not the purpose of the framers of the section to prescribe such precautions in order to protect the person whose duty it was to operate or run the elevator, while so doing. The statute leaves the duty of the master to the servant employed to operate the elevator the same as it was at common law. The section of the statute, upon which this action is predicated, does not attempt to create any new right or duty between the employer and the servant with respect to the operation of the elevator. This case is, therefore, wholly unlike the case of Wendler v. People’s House Furnishing Co., 165 Mo. 527, which arose under an ordinance of the city of St. Louis, and where the plaintiff was not engaged in the operation of the elevator.
As was said by Gantt, J., in Lore v. American Mfg. Co., 160 Mo. 621, in speaking of an action under this statute, where it was claimed that the action was not based on the statute: “It is true the pleader does not refer in express terms to the title of the act or aver that the failure of the defendant to safeguard its jute machine was a violation of said act, but this is not at all necessary. It is sufficient when the law, as it is in this case, is a public act, to state the facts which bring his case clearly within the law, and this he has done.”
The plaintiff in this case, both by his petition and
The defendant, however, tried the case upon the theory of non-liability, because the elevator was actually in use at the time the plaintiff was injured. There is no testimony in the case on plaintiff’s behalf hearing upon the actual use of the elevator at said time except the testimony of the plaintiff himself, who said that he was directed to go to the fourth floor, get two dozen collars, put them on the elevator and bring them to the first floor; that he saw that the crossbar at the front of the elevator was open; that for the purpose of executing his order and of bringing the elevator to the fourth floor in order to put the collars on it, he stood by the open hatchway, reached out with both hands, took hold of the rope that started the elevator, got the elevator stated on its upward course, and just as he had done so he lost his balance and fell. Upon this undisputed testimony the defendant contends that the plaintiff stated no case under the statute, because the elevator was in actual use on the fourth floor at the time of the accident, and the statute exempts the owner from using “all due diligence” to keep the trapdoors, self-closing hatches, safety catches or strong guard-rails at least three feet high, closed, when the elevator is in actual use.
If the statute applied to a case of this character this objection would be fatal to the plaintiff’s case, under the undisputed facts of the case stated by the plaintiff himself. To avoid these consequences the plaintiff contends that no express reference to the statute is contained in the petition, but that, “where the action is based on facts constituting a cause of action at common
This case was tried by the plaintiff in the lower court upon a petition and instruction which predicated a right of recovery under the statute, and the plaintiff cannot now be heard to claim a right to recover as for common-law negligence. A statute may or may not destroy a common-law right, and will not be construed to destroy such a right, unless the intention of the Legislature clearly appears to have been to produce such a result. But this rule of construction cannot be invoked by one who predicates a right of recovery upon the stat-, ute, and who does not invoke the aid of the common law. And such is this' case.
II.
But assuming for the purpose of argument, that the statute was intended for the protection of operatives of elevators, then the defendant’s objection, that under the very terms of the statute the defendant is not liable in this case under the facts proved, must be sustained. If, as the plaintiff says, the elevator was in actual use at the time he received the injury, the case falls within the exception specified in the act. The plaintiff testified that he had been instructed in the use of the elevator by both Smith, the foreman, and Kelley, the former assistant foreman, and that while instructing him the
This argument, however, only accentuates what has been said with reference to the object and meaning of the section of the statute quoted, and the more clearly demonstrates that that section was never intended to afford a right of recovery under circumstances such as are disclosed in this case.
The learning and diligence and skill of counsel have exhaustively covered other features of this case, notably the questions of contributory negligence and
For the foregoing reasons the judgment of the circuit court is reversed.