Obermeyer v. Logeman Chair Manufacturing Co.

120 Mo. App. 59 | Mo. Ct. App. | 1906

Lead Opinion

BLAND, P. J.

(after stating the facts).

1. At the close of respondent’s evidence the appellant moved for a peremptory nonsuit which the court refused. This ruling is assigned as error. If the respondent’s evidence shows that the elevator, furnished him was a reasonably safe place to work, or if the evidence, is all one way that respondent himself was guilty of negligence that directly contributed to his injury, he should have been nonsuited.

Webb on Elevators, section 17, says: “Proper care in the construction of freight elevators does not require that they be wholly inclosed or sheathed, and this may be considered a general rule, although there may be exceptions,” citing Hoehmann v. Moss Engraving Co., 4 Misc. Rep. 160. The same authority, at section 14, says: “In all cases except where the failure to exercise care is in violation of some statute, or willful, or such reckless disregard for the personal safety of others as to amount to negligence per se, the questions of fact arising in the case and the estimate of prudence are for the jury to determine.”

Respondent offered some evidence tending to show that the accident was due to faulty construction, viz., that the strips nailed on the floor-beams were not properly constructed; that they should have been the full width of the beams and beveled from the upper to the lower edge to prevent the very sort of accident that happened to respondent. On this evidence, we think the issue, in respect to negligent construction, was a question for the jury to determine. [McGonigle v. Kane, 20 Colo. 292; Goodsell v. Taylor, 41 Minn. 207 (both elevator cases); Hunt v. Railroad, 14 Mo. App. 160; Young v. Webb City, 150 Mo. 333, 51 S. W. 709; State v. Peebles and York, 178 Mo. 475, 77 S. W. 518.]

Does respondent’s evidence conclusively convict him of contributory negligence? We do not think so. He was standing near the edge of the elevator but not in a position to be caught between it and the strip on the floor-beam. He was a boy, who would not be expected to be on his guard at all times to avoid danger, was leaning on the shoulder of another boy, who, he says, stepped back on his foot, and to relieve his foot of the pressure, respondent stepped back and his heel was caught in the manner he described. A man, in respondent’s situation, would perhaps have noticed that the elevator was near a floor and have remembered the danger of having his foot caught should he throw it back, but whether a fourteen-year-old boy should so closely observe and exercise such a degree of prudence, we think was a question for the jury; for the same standard of care required of an adult, in Rogers v. Meyerson Printing Co., 103 Mo. App. 683, 78 S. W. 79; was held not to apply to a boy of thirteen years, and not to apply to a boy of sixteen years in Campbell v. St. Louis & Suburban Ry. Co., 175 Mo. 161, 75 S. W. 86. It is the duty of employers of boys and girls of immature years not to expose them to such dangers as they are not likely to see or, if seen, appreciate, on account of their indiscretion and want of care; and if they do and injury results to the minor, the employers cannot escape liability on the plea of contributory negligence, unless they can show that the minor failed, after being warned of the danger, to use that care which persons of his age, capacity and intelligence are capable of and are expected to use in like circumstances. [Anderson v. Railroad, 81 Mo. App. 116; Coleman v. Land & Lumber Co., 105 Mo. App. 254, 79 S. W. 981; Anderson v. Railway, 161 Mo. 411, 61 S. W. 874.] And whether or not the minor did use such care is almost always a question for the jury. This case does not furnish an exception to this rule, and we think the court was right in refusing to nonsuit the respondent.

2. The appellant assigns as error the giving of the following instructions for the respondent:

“1. The court instructs the jury that if they find from the evidence that the defendant occupied a building in the city of St. Louis in which it carried on business as a manufacturer, and that in said building there was an elevator propelled by steam and maintained and operated by the defendant; that on the twenty-third day of June, 1902, plaintiff was in the employ of defendant, and was on said day riding upon said elevator in the discharge of his duties as such employee of defendant; that said plaintiff while so riding upon said elevator was injured by catching his left foot and ankle between the floor of said elevator and a certain sill or board which projected into the shaft of said elevator, up and down which said elevator was propelled; and if the jury further believe from the evidence that the extension of said sill or board into elevator shaft made the same unsafe or dangerous, and that such dangerous condition was known to defendant at said time, or could, by the exercise of ordinary care have been known to it, and if the jury believe from the evidence that the defendant did not exercise ordinary care in maintaining said elevator in such condition, and if the jury further believe from the evidence that plaintiff was injured in consequence of said dangerous condition of said elevator and that, at the time of the injury, plaintiff was exercising such degree of care as an ordinarily prudent boy of the same age and experience would have exercised under the same or similar circumstances, then the jury will find for plaintiff.

“2. The court instructs the jury in this case that if they find from the evidence that the plaintiff was a minor of about the age of fifteen years, then he could not and did not assume any risk that might arise in his employment, if any there was, caused by the failure of the defendant to exercise ordinary care to provide a reasonably safe elevator shaft and appliances with which the plaintiff was to work in the discharge of the duties of his employment.

“5. If the jury find from the evidence that there existed in the elevator shaft at the third or fourth floor of the building mentioned in the evidence a certain projection into said shaft, and if the jury find from the evidence that said projection rendered the use and travel on said elevator hazardous, and if the jury find from the evidence that defendant provided said elevator and shaft for the plaintiff to ride upon in the discharge of the duties of his employment; and if the jury find from the evidence that the defendant did not exercise ordinary care in providing said elevator and shaft for the plaintiff to work with in the discharge of the duties of his employment; and-if the jury find from the evidence that on the twenty-third day of June, 1902, the plaintiff in the discharge of the duties of his employment was on said elevator and whilst so on said elevator the plaintiff was pushed or shoved by one Harder and thereby was caused to step back, and in doing so' got his foot caught between said projection and the floor of the elevator, and thereby sustained the injuries mentioned in the evidence; and if the jury further find from the evidence that said condition or projection in said shaft directly concurred with said Harder in causing plaintiff’s said injury; and if the jury find from the evidence that the plaintiff was exercising ordinary care at the time of his injuries, then he is entitled to recover.”

The objection to the respondent’s first instruction is disposed of by what is said in the foregoing paragraph of this opinion; likewise the objection to the second instruction, except the contention of appellant, that the respondent assumed whatever risk there was in riding on the elevator. This is the principal contention of appellant and is chiefly relied upon for a reversal of the judgment. It is contended that the evidence conclusively shows the case is one of assumed risk, and able counsel have industriously and ably collated and digested the cases in this country upon the subject. Their labor is lost in the circumstances of the case and in view of the unique doctrine established by our Supreme Court, that the servant assumes only such risks as are ordinarily incident to his employment, after the master has performed his whole duty to provide him a reasonably safe place to work and reasonably safe appliances with which to do his work; and holding, that if the master is negligent in furnishing his servant an unsafe place to work, or unsafe appliances with which to do the work, and the servant knows, or by the exercise of ordinary care could have known of the unsafe place or appliances, and yet continues in the master’s service, he does not thereby assume the risk occasioned hy the negligence of the master; but if the place to work, or the appliance furnished, is obviously so dangerous that a reasonably prudent man would not attempt to use them, or they could not be used even with caution, the servant will be guilty of such contributory negligence as to cut off his right of recovery. [Wendler v. People’s House Furnishing Co., 165 Mo. 527, 65 S. W. 737; Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Cole v. St. Louis Transit Co., 183 Mo. 81, 81 S. W. 1138; Blundell v. Mfg. Co., 189 Mo. 552, 88 S. W. 103.] See, also, Stafford v. Adams, 113 Mo. App. 723-4, 88 S. W. 1130, where Johnson, J., of the Kansas City Court of Appeals, has industriously collated the other Missouri cases in point.

In Blundell v. Mfg. Co., supra, at page 560, Judge Marshall, in respect to the doctrine of assumption of risk and contributory negligence, says: “There is a vast difference between the doctrines of assumption of risk and contributory negligence; the first rests in contract, and the second arises out of the negligence of the servant. The result to the person injured is the same in both cases, but the underlying principles are radically different, and should he carefully borne in mind in every case. The maxim, ‘volenti non fit injuria/ cuts off a recovery where the injury is caused by one of the risks incident to the business which the servant assumes when he enters the employment. The right of recovery is cut off in the second case under the rule of law that prohibits a recovery where the negligence of the person injured contributes thereto.”

Under the law of the Supreme Oourt of the State, the respondent did not assume the risk arising from the negligent construction of the elevator, if it was negligently constructed, and hence instruction No. 2 is not erroneous.

3. It is contended that respondent’s fifth instruction is erroneous for the reason that Harder stepping on the respondent’s foot was the primary and proximate cause of the injury.

In Bassett v. City of St. Joseph, 53 Mo. 290, an excavation extending into the street was negligently left uncovered, and plaintiff (a female traveling on the street) through fear of being kicked by a mule, jumped to one side and into the excavation and was injured. It was held that the kicking of the mule, or the fright caused thereby, was not the sole cause of the injury and that plaintiff was entitled to recover, if she was in the exercise of ordinary care.

In Carterville v. Cook, 129 Ill. 152, plaintiff, a boy, while exercising ordinary care for his own safety, passing along a much-used public sidewalk of defendant, was, by reason of the inadvertent or negligent shoving by one boy of another boy against him, jostled or pushed from the sidewalk at a point where it was elevated some six feet above the ground, and where it was unprotected by railing or other guard, and thereby severely injured in one of his limbs. It was ruled: “If a person, while exercising due care for his personal safety, be injured by the combined' result of an accident and the inadvertent or careless act of another, or the negligence of a city or village, and the injury would not have been sustained but for such negligence of the city or village, yet, although the accident or wrongful act of the third person be the primary cause of the injury, if it was such as common prudence could not have foreseen and avoided, the negligent city or village will be liable for the injury.”

In Newcomb v. Railroad, 169 Mo. 409, 69 S. W. 348, it was held: “A defendant is liable if his negligence concurred with that of another, .... and became a part of the direct and proximate cause although not the sole cause of the injury.”

The instruction is in. line with these authorities and we think properly stated the law'.

4. Error is assigned in the refusal of the court to give the following instructions asked by appellant:

“B. The court instructs the jury that there is no evidence of any negligence in this case on the part of the defendant with reference to the construction of the elevator in question.

“C. The court instructs the jury that plaintiff in his petition alleged that the defendant was guilty of negligence in having a sill on the interior of the elevator-shaft at the third floor of the building in question. And the court instructs the jury, with reference to the sill mentioned in the petition, that there is no evidence of any negligence on the part of the defendant in having such a sill on the third floor.

“D. The court instructs the jury that if you believe from the evidence the plaintiff knew the way the elevator shaft in question was constructed, and knew that there was a projection of one and one-half inches into the elevator shaft at each floor, and knew this space at this projection was narrower than it was between the floors, and if you also believe from the evidence that the plaintiff knew there was no guard on the platform of the elevator, and also knew that if his foot was out beyond the platform of the elevator it would he caught by such projection, and that he understood and comprehended there was danger of this happening while and during all the time he was using the elevator, and you also believe from the evidence that having this knowledge and understanding (if you from the evidence believe he did have them) he of his own will continued in the employ of the defendant and continued to use the elevator in question, then he assumed the risk of being caught and injured by such projection.”

If we are right in our views of the case as stated in the foregoing paragraphs, the court properly refused these instructions.

5. Error is assigned in the refusal of the court to permit Dr. Amyx to testify to a conversation had with the respondent in regard to his injury and how he happened to be injured. The doctor’s evidence shows that when respondent was injured, appellant sent him to the doctor’s office for treatment and the interview was had while respondent was in his care. In answer to the following question: “The snbject of your interview and conversation with him was to ascertain his condition for the purpose of treating him,” the doctor said: “Yes, sir. And there'were other motives there.” He further testified that he was acting as physician and surgeon for the appellant, and that the remarks made by the respondent were not made in answer to any question asked in order to properly treat him.

Section 4659, R. S. 1899, provides: “The following persons shall be incompetent to testify: . . . fifth, a physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.” The fact that Dr. Amyx examined respondent at the instance and request of appellant for the purpose of treating him did not remove his incompetency. [Weitz v. Railway, 53 Mo. App. 39.] The doctor’s testimony shows that he had a double purpose in holding the interview with respondent: first, to ascertain his condition for the purpose of treating him professionally; second, to apply the boy with questions, while he was suffering from shock and severe pain as a result of the recent injury, for the purpose of getting some statement or admission from him that would be advantageous to his (Amyx’s) employer, the appellant, in case the boy should sue to recover compensation for his injury. In these circumstances we are not inclined to split the interview into parts and determine what parts were and were not necessary to enable the doctor to prescribe for the respondent, but to hold him incompetent to testify to any part of the interview; besides, the evidence of the doctor, as offered, was but cumulative and there is no probability that it would have changed the .result if it had been admitted.

6. George W. Caldwell, an expert witness for respondent was permitted to testify, over the objection of the appellant, that the strips nailed on the floor-beams were unnecessary; that “they formed a cage that would catch anything that might get in their way;” that he never erected an elevator or allowed anything like said strips, and it was not the ordinary method of finishing the well-hole of an elevator, and if put on should extend to the bottom of the floor-beams. It is contended that this was not a proper subject of expert testimony; that the only proper expert testimony in this connection was to show whether this was the usual construction, and that the question as to whether or not it was necessary was entirely immaterial.

In Lee v. Knapp & Co., 55 Mo. App. l. c. 406, in speaking of the construction of an elevator, this court said: “Mere usage by others is not the sole criterion. It is the duty of owners of elevators to make them reasonably safe for the uses to which they are to be put; and, in so doing, they should exercise that degree of care employed by reasonably prudent men in attaining the same end.”

The witness testified that elevators were not usually constructed as was this one, that strips were not common on elevators in the city of St. Louis. We can see no valid objection to the testimony.

Discovering no reversible error in the record, the judgment is affirmed.

Goode, J., concurs; Nortoni, J., dissents.

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Dissenting Opinion

NORTONI, J.

(dissenting).

The defense of assumed risk is not pleaded in the answer in this case and except for the fact that both parties requestéd instructions along that theory and tried the case with respect thereto, it would not be a'subject for our consideration; but as the record discloses both parties participated in the trial as though this defense was pleaded in the answer, it therefore becomes the province of the court to review the question here. I do not concur in that portion of the opinion of the court holding that under the law of this State, the servant assumes only such risks as are ordinarily incident to the employment. In the recent case of Mathis v. Kansas City Stock Yards Co., 185 Mo. 434, decided by the Supreme Court in banc, the servant was held to have assumed the risk which clearly arose by virtue of the master’s negligence and was not one ordinarily incident to the employment. The holding was predicated upon the proposition that by continuing in the employment without complaint with respect to the dangerous appliance, the servant had assumed the risk resulting therefrom, provided he knew and appreciated the risk thereof, and he was held as a matter of law to have known and appreciated the danger inasmuch as the danger was obvious. Now it is the law universally that by continuing to labor with a defective appliance without complaint, the servant assumes such risks therefrom as were both known and appreciated by him, and further, that when the dangers of such defective appliance is obvious to both servant and master alike, he is held to have assumed the risk therefrom as a matter of law. Our views on this question are fully set out in Lee v. St. L. M. & S. E. Ry. Co., 112 Mo. App. 372, 87 S. W. 12, and Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, 91 S. W. 460. Our Supreme Court, in numerous ably considered cases, has recognized and adjudged the proposition stated to be the law. There is no question about that. The cases are abundant to that effect. None of them have been expressly overruled. Consult the following authorities in point: Porter v. Ry. Co., 71 Mo. 66; Keegan v. Kavanaugh, 62 Mo. 230; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102; Mathis v. Kansas City Stock Yards Co., 185 Mo. 434, 84 S. W. 66. These cases are sound in principle and in accord with the best courts on this subject in every jurisdiction where the common law obtains, so far as I have been able to ascertain, and I have devoted much time and careful thought to the question of assumed risk. I do not say that the boy in this case should have been held, as a matter of law, to have assumed the risk, but I am of the opinion that at least the plantiff’s second instruction incorporates a vicious notion with respect to this question and that it should have been refused.

I am of opinion that the defendant’s instruction D. as follows: “The courts instructs the jury that if you believe from the evidence that plaintiff knew the way the elevator shaft in question was constructed, and knew that there was a projection of one and one-half inches into the elevator shaft at each floor, and knew this space at this projection was narrower than it was between the floors, and if you also believe from the evidence that the plaintiff knew there was no guard on the platform of the elevator, and also knew that if his foot was out beyond the platform of the elevator it would be caught by such projection, and that he understood and comprehended there was danger of this happening while and during all the time he was using the elevator, and you also believe from the evidence that having this knowledge and understanding (if you from the evidence believe he did have them) he of his own will continued in the employ of the defendant and continued to use the elevator in question, then he assumed the risk of being caught and injured by such projection,” was a proper declaration of law on the facts in proof and that it should have been given. To my mind, it appears that its refusal was error.

I deem the doctrine of assumed risk running through the case as manifested by the instructions given and refused, to be at variance with fundamental principle on the subject as well as in conflict with the several decisions of our Supreme Court above cited, and therefore respectfully request that the cause be certified to that Court.