187 Mo. 276 | Mo. | 1905
This is an action for ten thousand dollars damages for personal injuries, received by the plaintiff on April 23, 1900, while in the discharge of his duty as a servant of the defendant. At the close of the plaintiff’s case, the trial court sustained a demurrer to the evidence, the plaintiff stood on the ruling, a verdict was rendered for the defendant, and the plaintiff appealed.
This petition alleges that the defendant corporation occupies, and does business in, a five-story building, numbered 823 and 825 Washington avenue, in St. Louis, in which it maintains and operates a freight elevator, operated by hydraulic power, and which is started or stopped by a rope or cable fastened to a
The specific negligence of the defendant charged is, first, that the elevator was defectively and dangerously constructed and operated, in this, that the gates did not close automatically, hut would remain in the position to which they were raised, and that defendant habitually and commonly permitted the gates to remain open and the shaft ungarded when the elevator was not on the level with the floor, and that there were strong iron hooks or plates attached to and projecting outwardly two inches from the floor of the elevator, which passed through narrow grooves cut in the several floors, so that when the gates were open and the elevator passed by the open gate, -there was no guard to protect persons standing on the floor of the building and near such opening, from being caught by such projecting hooks or plates and being carried upward against the bottom of the open gate; second, that the defendant permitted any person in the building to run the elevator, and without any warning that it was to he moved; third, that there is an ordinance of the city of St. Louis that requires users of all power elevators to employ a competent person aged not less than sixteen years to run them, and that defendant failed to employ such a competent person to run its elevator, hut permitted divers of its employees who were unskilled in running elevators to run the same.
The petition then alleges that-while plaintiff was in the discharge of his duty and was sweeping the false floor or covering over the elevator shaft on the
The answer is a general denial, a plea of contributory negligence, and a plea of assumption of risk.
The case made by the plaintiff is this:
The plaintiff was nineteen years of age, and had been in the employ of the defendant as a porter or minor clerk for about ten days; his duties chiefly were to help to load and unload the freight elevator, and to sweep the building, including the covers on the elevator shaft. The defendant used the whole of the five story building. There were two elevators in the building, a passenger elevator and a freight elevator. Around the elevator shaft on each floor there was a fence or railing, with a gate which worked on weights so as to be lifted like a window. The freight elevator was run by hydraulic power, and was equipped with appliances for covering the shaft at each floor to prevent accidents. These appliances consisted of false floors, which were connected with the elevator and worked automatically. Thus: there were six such false floors above the top of the elevator and six below'' the bottom of the elevator. Those below the elevator worked on a system of ropes and weights, so that when the elevator was at the bottom of the shaft, they were all pressed down below the bottom of the elevator. As the elevator went on up, these would rise with the elevator, the lowest one to the height of the first floor only, where it would stop automatically and cover the opening of the shaft like a prolongation of the floor of the building; the next would rise to the height of the second floor and cover the opening in the shaft there, and so on to the top, the purpose
On the day of the accident the plaintiff was sweeping the second floor. In order to sweep the false floor or covering he stood close to the shaft and at the open gate and reached over to the false floor or cover. The gate was raised six or eight feet. While so engaged the elevator came up and shoved the false floor upward. One of the iron prongs aforesaid attached to the bottom-of the false floor became entangled with the shoe or bottom of the trousers on plaintiff’s left leg, and he was carried upward, so that his head and shoulder struck against the bottom of the raised gate, and he was in
There were electric hells on each floor of the building at the elevator shaft. The defendant had promulgated and posted a system of signals to be employed in using the elevator, which required any one who desired to use the elevator to ring the hell once on the floor he was on and where he wanted the elevator to come. If the elevator was not in use, the reply would be two rings of the hell. If the elevator was in use, there would he no reply. On this occasion the bell was not rung at all. The bells could be heard on every floor by a person standing for from twenty-five to fifty feet from the elevator shaft. The defendant had a man whose sole duty it was to run the passenger elevator, but no one whose sole duty it was to run the freight elevator. There were several stockmen whose duty it was to run the freight elevator, together with their other duties. Several times the foreman used it and once or twice the engineer used it. The officers of the company had used the freight elevator when the passenger elevator was out of order. They did not operate it themselves, but always called one of the stockmen to run it. The elevator was started or stopped by simply pulling on the rope that was attached to the valve -in the cellar. It had the usual speed of such elevators, and was running at the usual speed at the time of the accident. It was possible to stop it in two feet. There was no evidence that the elevator was out of repair. On the contrary, the testimony shows it was a first-class freight elevator, and that the construction and false floors were not only in good order, and conducive to safety, but that such appliances were universally used in connection with properly constructed freight elevators.
The plaintiff offered in evidence the city ordinance pleaded. The court excluded it, on the ground that there was no evidence showing that its violation was
At the close of the plaintiff’s case, the trial court sustained a demurrer to the evidence, a verdict for the defendant was returned by direction of the court, and the plaintiff appealed.
I.
The relation of master and servant existed between the plaintiff and the defendant. The duty of the master to furnish the servant with a reasonably safe place and reasonably safe appliances in which and with which to work, and the correlative duties and liabilities of the master and servant, have so recently been fully considered and settled by this court, that it is only necessary to refer to those cases. [Fisher v. Lead Co., 156 Mo. 479; Minnier v. Railroad, 167 Mo. l. c. 112; Holmes v. Brandenbaugh, 172 Mo. 53; Curtis v. McNair, 173 Mo. 270; Goransson v. Mfg. Co., 186 Mo. 300.]
The essence of the first ground of negligence charged is," that the defendant habitually permitted the gates to the railing around the elevator shaft to remain open or up, when the elevator was not on a level with the floor, and that the iron prongs which held the false bottoms in place was a dangerous construction, and that in consequence of the combination of the two conditions the plaintiff was caught by the iron prong and carried upward until his head struck the bottom of the open or raised gate.
The use of the false floors to cover the openings in
But the gist of his allegation in this respect seems to be that the gates were not arranged so as to close automatically. It may be true that such an arrangement would have been a safer method of operating them. But the same is true of windows, and a like contention might as reasonably be made by one who fell out of an open window. Moreover, the want of such automatic appliance for closing the gates, was open, apparent and obvious to the plaintiff or whoever looked at them or saw them raised, as plaintiff did before the accident, and therefore the risk incident thereto
It does not appear that the iron prongs that held the false floors in place were dangerous, or that there was any other or better or safer way of constructing such floors, and it is not even pretended that such false floors were not a proper appliance, and it is self-evident that the use of such appliances was conducive to safety.
The plaintiff, therefore, wholly failed to prove the first act of negligence pleaded.
The second act of negligence pleaded is, that the defendant permitted any one in the. building to run the elevator, and that without any warning it was moved.
There is no evidence whatever in the record that’ the defendant permitted any one in the building to run the elevator. On the contrary, the .evidence discloses that there was a stockman on each floor whose duty it was to run the elevator, and that when the officers of the company used this elevator themselves, they always called one of the stockmen to run the elevator and did not attempt to run it themselves. The evidence also shows that the foreman and engineer had run. it once or twice or several times. But there is no evidence that any other clerk, employee or person was ever authorized to run it or ever did run it.
It is true that the evidence shows that no bell was rung or warning given when the elevator was started up on this occasion. But it was equally true that the defendant had promulgated and posted a rule requiring the bell to be rung before the elevator was started,' and that the bell could be heard on every floor by a person standing within twenty-five feet of the elevator shaft, and that it was the usual custom to ring the bell as required. There is no evidence'to show who started
The third act of negligence charged is the ruling of the court in excluding the city ordinance which requires users of all power elevators to employ a competent person to run them.
The court excluded the ordinance because it did not have any place in the case made, and because even if the defendant .had violated the ordinance in this respect, such failure was not the proximate cause of the injury and had nothing to do with it.
The evidence adduced shows that the defendant employed a stockman, over the age of sixteen years, on every floor, whose duty it was to run this elevator, and that they were all competent to do so, or at any rate there is no showing that they were incompetent.
The petition charges that the defendant did not employ a competent person to run the elevator, but permitted divers of its employees who were unskilled in running elevators, to run the same. The evidence fails to show that the stockmen, whose duty it ordinarily was to run it, or the foreman or engineer, who are shown to have run the elevator once or twice or several times, the exact times are not stated, were incompetent or
Unless, therefore, the employment of more than one competent person to run the elevator was a violation of the city ordinance, and that the meaning of the ordinance is that only one person shall be permitted to run it and that he shall not perform any other service, there was no violation of the ordinance shown and hence the exclusion of the ordinance was not error.
Such a construction as that indicated does not suggest itself from the most critical reading of the ordinance, nor does it commend itself to the legal mind. For, in hotels, for instance, where the elevator runs substantially day and night, it would be physically impossible for one person to run it all the time. Necessarily more than one person would have to perform that duty. Of course only one would run it at a time. But the same is true of this elevator, and the system of bells in use by defendant was intended to prevent more than one person from attempting to use the elevator at the same time. Moreover, the accident in this case is not shown to have been, in anywise, attributable to a conflict in the attempted use of the elevator by the persons who were authorized to use it. The evidence simply shows that without any warning the elevator rose, and that there was no one on it. What caused it to start, or who started it, whether a vice-principal, or a fellow-servant, does not appear. The plaintiff, therefore, failed to make out a case of violation of the ordinance, and hence the exclusion of this ordinance cuts no figure in the case. The writer of this opinion, however, again registers his opinion that a city ordinance can not afford the foundation for a civil right of action between citizens inter sese, and also expresses his regret that he has, so far, been unable to make the majority of
Irrespective, therefore, of the question of the contributory negligence of the plaintiff in voluntarily placing himself in a position which he now claims was dangerous and which he must then have known was dangerous as well as he knows now, when he could just as easily have taken a position of safety from which he could have done the sweeping required just as effectually and easily, the evidence adduced wholly fails to sustain the negligence charged, and the trial court properly sustained the demurrer to the evidence.
The judgment is affirmed.