193 Mo. 400 | Mo. | 1906
— This is an action for $5,000 damages for personal injuries received by the plaintiff on the 25th of November, 1902, by reason of being struck by the falling of a broken piece of a cog wheel on an elevator in the premises occupied by the defendant, at number. 207 Chestnut street in the city of St. Louis. At the close of the whole case the court sustained a demurrer to the evidence, and the plaintiff took a nonsuit with leave. Thereafter the court sustained the motion to set aside the nonsuit, and the defendant appealed.
THE ISSUES.
The petition alleges that at the date of the accident the defendant was engaged in the silver plating business, and occupied a four-story building, through the western part of which was a hatchway or elevator opening, from the ground floor to the top of the building; that in said hatchway was an elevator for the purpose of hoisting and lowering materials to and from the various floors of the building; that said elevator was operated by hand, by means of a shive rope, pulleys, wheels and other machinery; that plaintiff entered the employ of the defendant on the 20th of November, 1902, and as a part of his employment was required to remove barrels of ashes from the several floors of said building to the bottom floor thereof, by using the said elevator, and there to empty them and return the empty barrels
The answer is a general denial, coupled with a plea of contributory negligence: first, in going upon and attempting to raise an elevator, which immediately theretofore had been broken and rendered dangerous to his knowledge and without the knowledge of the defendant, by the careless and negligent use thereof by himself and one Kramer, a fellow servant; and, second; in violation of the rule of the defendant, communicated to the plaintiff, prohibiting the use of said elevator by persons engaged in the same line of work as plaintiff, and in disobedience to explicit orders not to use said elevator, given plaintiff by defendant. The reply is a general denial.
The case made is this:
The defendant occupied a four-story building, in which there was a freight elevator, extending from the top floor to the basement. At the time of the accident, and for some time prior thereto, the brake, or the rope that operated the brake, on the elevator was broken and out of repair, so that in lowering the elevator it was necessary for the operator to take hold of the shive rope to control the speed of the elevator, and also to stop it before it struck the ground. The testimony for the plaintiff tends to show that by holding to the shive rope, the hands of the operator would become bruised or scarred by reason of the friction of the rope on the hands, and that in order to prevent injury to the hands the operator would sometimes clinch the rope in his arms and put his foot against the rope and press it against the side of the elevator. The testimony for the plaintiff further tends to show that the plaintiff had been employed about four days before the accident to do odd jobs about the factory, including assisting in removing barrels of ashes by way of the elevator; that on the day of the accident he assisted Kramer in putting a barrel of ashes on the elevator on the third floor,
The testimony on the part of the defendant tended to show that it was no part of the duty of either the plaintiff or Kramer to remove the ashes; that the defendant had in its employ a. man who attended to that work; that said man in removing the ashes would put the barrel on the elevator, and then stand on the third floor, and taking hold of the elevator rope would lower the elevator to the basement, and then walk down, unload the barrel, and from the basement would hoist the elevator, without getting on it, back to the third floor by pulling on the shive rope; that the foreman of the defendant had several times warned the plaintiff and other boys around the establishment not to use the elevator or get on it at all, because it was dangerous and they were liable to be hurt, and that he had told the plain
There is no conflict about the fact that the brake, or the rope that operated the brake, had been broken for some time previous to the accident and that the dedefendant knew it. Neither was there any conflict as to the fact that the purpose of the brake was to regulate the speed of tbe elevator, and to stop it. The testimony introduced on behalf of the defendant further shows that the boys had been told not to use the elevator at all, but to carry the ashes down the steps, and to carry the empty ash barrels up the steps, and that it was no part of the duty of the plaintiff to. empty the ashes at all, but that his sole duty was to make “satin wheels — brush wheels,” and that his place of work was at the bench where those wheels were made, and to go on errands, and to sweep up around the shop. The testimony for the defendant further showed that the break of the cog wheel was 1‘ as bright as a silver dollar, ’ ’ showing that it was a recent break and not a break arising from an old crack. There is no dispute in the evidence that the elevator has not been inspected for some time. There is no direct evidence as to what caused the cogwheel to break, and the defendant claims that it was the act of Kramer in suddenly checking the speed of the elevator, by taking hold of the shive rope, that caused the cogwheel to break.
The foregoing is a sufficient statement of the facts and the conflict in the testimony for.the purposes of this case.
1.
The rule is now well settled in this State that this court will not reverse the action of a trial court in granting one new trial, unless the case is such that no verdict in favor of the party to whom the new trial is thus granted, could, under any circumstances, be permitted to stand. [Haven v. Railroad, 155 Mo. 216;
The question then resolves itself into- this: could a verdict for the plaintiff, on the facts stated, be permitted to stand? That is, conceding all the facts to be as the plaintiff shows them to be, and that the verdict of the jury was in his favor, could the verdict be permitted to stand? Or otherwise stated, conceding the facts, do they show a cause of action in the plaintiff? The facts shown by the plaintiff are that he was employed by the defendant; that it was a-part of his duty to assist in removing barrels of ashes from the upper floor to the basement on the elevator; that the brake, or rope to the brake, on the elevator that controlled the speed of the elevator and that stopped it, was broken, so that it could not be used, and that in order to regulate the speed and stop the elevator it was necessary for the operator to hold on to the shive rope with his hands, or to wrap it around his arm, and press the rope with his foot against the side of the elevator, and thus furnish a human brake for the mechanical brake that was out of order; that in the discharge of his duties, the plaintiff and Kramer placed a barrel of ashes on the elevator, and started it from the third floor towards the basement ; that they did not hold on to the rope or press a ■foot against it and regulate its speed, but that when the elevator came within ten feet of the basement, Kramer took hold of the rope and suddenly checked the speed of the elevator, so as to lower it gently to the ground; that when he did so some dust, and perhaps some bricks, fell from the cogwheel at the top- of the elevator; that after unloading the ashes they placed the barrel on the
On this showing, if the case had been submitted to the jury, and they had returned a verdict for the defendant, and the trial court had granted the plaintiff a new trial, there could be no question that this court would not have interfered with the action of the trial court, for it could not be said that no verdict in favor of the plaintiff could have been allowed to stand. Where the court grants the plaintiff a new trial, after the jury has returned a verdict for the defendant, it may do so because the court disagrees with the jury on the finding of fact, .as well as where the court is of opinion that it committed errors of law. Where the court nonsuits a plaintiff, it does so solely upon the theory that, con
In the case at bar controverted questions of fact were presented by the testimony of the parties, both as to the duty of the plaintiff, as to. whether he was acting within the scope of his employment, and as to whether he had been forbidden to use the elevator. It was likewise a question of fact for the jury to determine what was the proximate cause of the injury, whether from the old, worn and dilapidated condition of the cogwheel and other machinery, or the absence of the brake, as the plaintiff claims, or the sudden checking of the speed of the elevator by Kramer, as the defendant claims. Whilst there was no direct testimony that the cogwheel broke because it was old, worn, and dilapidated, it is also true that there was no testimony that the checking of the elevator suddenly, as Kramer did,was sufficient to break the cogwheel. There was evidence that the elevator had not been inspected for quite a while before the accident. Fair-minded men might reasonably differ, therefore, as to the cause of the breaking of the cogwheel. But, however this feature of the case might have been decided, the fact still re-' mains, undisputed, that the brake which was intended to regulate the speed of the elevator was broken and out of order, or at any rate, the rope that operated the brake was broken, and this was some evidence, at any' rate, of negligence on the' part of the defendant in not furnishing the plaintiff with a reasonably safe appliance. If, therefore, the case had been submitted to the jury, and they had returned a verdict for the defendant, and the court had granted the plaintiff a new trial, it
For the foregoing reasons the judgment of the circuit court is affirmed.