CAMPBELL, C.
Action to recover damages for personal injuries suffered by plaintiff, Beitling, through the alleged negligence of the defendants.
The trial was to a jury. The plaintiffs had a verdict and judgment in the sum of $5000. The defendants have appealed.
The petition alleged that defendant, S.S. Kresge Company, owned and operated retail stores, one of which was located at 1117 Main Street in Kansas City, Missouri, and in which it maintained and operated elevators, "especially a freight elevator having a balance weight which moves in the opposite direction to which said elevator is moving and remains stationary when the elevator is standing"; that defendant. Hicklin, was the employe of his codefendant and as such was the operator of said freight elevator; that plaintiff, Beitling, as the employe of Independent Electric Machinery Company was, on October 7, 1936, engaged in installing a conduit in the shaft of the freight elevator extending from the fifth floor of the store building located at 1117 Main Street to the basement therein, to be used in carrying electric wires; that Hicklin opened and left open the door of the elevator shaft an the fifth floor, for the purpose of allowing Beitling to work in the shaft while installing the conduit, and then lowered the elevator to about the first floor where it came to rest; that while Beitling was working in the shaft defendants carelessly caused or allowed the freight elevator to move upward, thus causing the balance weight to strike and injure his left foot and toes. And —
"That said defendants and each of them were guilty of negligence in the following particulars, to-wit:
"1. In starting said elevator in motion when defendant, Theodore Hicklin, an agent and servant of defendant S.S. Kresge Company acting within the scope of his authority and employment, knew that plaintiff S.P. Beitling was installing a conduit in said elevator shaft, and knew or by the exercise of ordinary care could have known there was danger of injuring him if said elevator was moved while he was in such position.
"2. In starting said elevator in motion by said defendant Theodore Hicklin, an agent and servant of defendant S.S. Kresge Company acting within the scope of his authority and employment, after leaving the door of said elevator shaft open at the fifth floor for the purpose of permitting said plaintiff S.P. Beitling to install said conduit in said shaft, without ascertaining whether said plaintiff S.P. Beitling was in a position of peril of being injured if said elevator was moved, and in continuing to move said elevator without ascertaining whether such action would cause injury to said plaintiff, when he could by the exercise of ordinary care have ascertained such fact.
"3. In starting said elevator in motion by said defendant Theodore Hicklin an agent and servant of said defendant S.S. Kresge Company acting within the scope of his authority and employment, after leaving the door of said elevator shaft open at the fifth floor for the purpose of permitting said plaintiff S.P. Beitling to install said conduit in said shaft, without giving said plaintiff any notice or warning of his intention to start or move same, and without giving him any opportunity to get in a place of safety, when he knew or by the exercise of ordinary care would have known that said plaintiff was in a position of peril of being injured if said elevator was moved. That as a direct result of the negligence of defendant as aforesaid the said balance weight of said elevator came in violent contact with the left foot of said plaintiff S.P. Beitling thereby crushing and mashing said foot and toes and fracturing the bones of said foot and toes to such an extent that one of his toes had to be amputated; ..."
The Liberty Mutual Insurance Company was a plaintiff upon the theory that it was the insurance carrier for Beitling's employer, had paid compensation to its co-plaintiff and was, therefore, entitled to be a plaintiff for the purpose of protecting its rights as such insurer. Nothing more need be said concerning the plaintiff company.
The defendant at the close of the evidence separately asked the court for a separately directed verdict in their favor. The requests were refused and error is assigned to each ruling.
In determining whether or not the case should have been submitted to the jury the evidence favorable to plaintiffs must be considered as true.
The plaintiff, Beitling, testified that at the direction of his employer he went to the
Kresge Company store on October 6, 1936, for the purpose of connecting a paper baler on the fifth floor with a switch in the basement. On that occasion he and his helper Wilson, after taking their tools and materials on the freight elevator to the fifth floor, concluded that in doing the work it was necessary to extend the wires from the bailer down the shaft to the switch. He then went to the second floor, told Funkhouser, the acting manager of the Kresge Company store, the manner in which he had concluded to do the work, and Funkhouser told him to see the elevator operator or the house electrician; and that nothing more was said by Funkhouser. On the next day he returned to the store, went to the fifth floor on a passenger elevator and there met Hicklin who was operating the freight elevator; asked Hicklin for the use of the elevator, to which the latter replied that he could not do that. Hicklin, on the request of Beitling, opened and left open the door of the shaft for the purpose of allowing the latter to work "inside the doorway." Before the elevator left the fifth floor Beitling asked Hicklin if he would notify him before moving the elevator. The reply was, yes. The elevator was then moved to the first floor and stopped. Beatling, in undertaking his task, sat on the floor in the door of the elevator shaft facing south and placed his left foot on a steel girder extending east and west across the shaft. The girder was 8 to 12 inches lower than the floor. While in that position he was looking directly at the elevator. After working about five minutes he saw the elevator start upward. He then threw himself backwards in effort to get out of the way but did not succeed, and the balance weight of the elevator struck and injured his left foot. No signal or warning was given that the elevator would be moved. Beitling further testified he did not see the balance weight nor the groove in which it traveled; that while he knew elevators had balance weights he had never noticed any elevator with a balance weight on the side of the shaft. In his cross examination he testified that he had been engaged in the same class of work for about fifteen years.
"Q. Now the customary manner of doing that work was to close down the elevator always, wasn't it — stop it — not let it run while you were doing the work? A. No, sir.
"Q. How? A. No, sir.
"Q. Not? A. We had to work from the elevator — work on the elevator.
"Q. If you did that you would use the elevator as a scaffold or means of helping you do your work? A. Yes, sir.
"Q. So that that gets to the point — the elevator — you never did work before without suspending the operations of the elevator as an elevator, did you?
"The COURT: You mean except for his own use.
"Mr. JOST: I mean that, yes.
"Q. (Mr. Jost) He said now, as I understand him that he used the elevator on previous occasions as a platform or means enabling him to go up and down to do the work. Is that right? A. That is right.
"Q. On no occasion before the instant occasion did you ever try to do this work in the manner you did on the instant occasion with the elevator going up and down the shaft, did you — you never did it that way before? A. Well, I don't remember of any occasion.
"Q. Why can't you remember whether you did or not — ever do the work in this same kind of a way before? A. Oh, we have run a pipe down a short distance in an elevator shaft without using the elevator.
"Q. Mr. Beitling, here is what I am getting at. On this occasion you know that the boy that was in charge of the elevator had refused to stop it completely, didn't he? A. Yes, sir.
"Q. And you knew that he was operating it to carry and move freight? A. Yes.
"Q. You knew that before you started to do your work, didn't you? A. Yes, sir.
"Q. Now then, getting right down to the question I am trying to propound to you — You never on any previous occasion undertook to do this same kind of installation when the elevator operator was moving and was expecting to move his elevator up and down in the shaft while you were working, did you? A. No.
"Q. This is the first time of the kind? A. As far as I can remember, yes.
"Q. Yes, sir. Now then, you knew from your experience through this fifteen years of work the manner in which these sort of elevators operated up and down and with counterweights and balance weights that were a part of the moving appliance? A. Yes.
"Q. You knew very well that the elevator was equipped with counter-weights or balance weights, that when the elevator
ascended in the shaft the balance weights came down? A. Yes.
"Q. And when the elevator moved down the shaft the balance weights would go up? A. I did.
"Q. And you knew it at the time you started to do this work? A. Yes, sir.
"Q. Now these balance weights and counter-weights as they are called, move up and down with the movement of the elevator, and also move on tracks or grooves, do they not? A. Yes, they do.
"Q. What I mean, to get it clear here, is that the balance or counter-weights...
