McCardle v. George B. Peck Dry Goods Co.

CourtUnited States State Supreme Court of Missouri
Citation195 S.W. 1034,271 Mo. 111
Docket NumberNo. 18239.,18239.
PartiesMcCARDLE v. GEORGE B. PECK DRY GOODS CO.
Decision Date29 May 1917

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Suit by Henrietta E. McCardle against the George B. Peck Dry Goods Company. From a judgment for defendant, plaintiff appeals. Reversed, and cause remanded.

Plaintiff sued for $20,000 as damages for alleged personal injuries caused by the fall of a passenger elevator in defendant's department store in Kansas City, in which the plaintiff was at the time a passenger. There was a verdict and judgment for the defendant, and the plaintiff has appealed. A previous suit by the plaintiff's husband against the same defendant for damages for loss of services of the wife by reason of said alleged injuries is reported in 191 Mo. App. 263, 177 S. W. 1095.

It is sufficient for the purposes of this case to say that the evidence tends to show that on December 26, 1911, said elevator, filled with passengers, including the plaintiff, on its way from the second to the first floor, could not be stopped, for some unknown reason, at the first floor, but passed on down to the bottom of the shaft in the basement, striking the bottom with a thud; that one or more of the passengers screamed; that no note was then taken of any physical injury to any of them; that plaintiff left the building without complaining of any physical injury, and that evening called up Mr. Conkey, defendant's superintendent and said to him:

"I don't know that I am hurt; but your elevator fell, and I thought you should know it."

The evidence also tends to show that immediately after such falling of the elevator the plaintiff was suffering from a severe nervous shock, and that about two days thereafter there was blood in her urine, and that she continued in a very nervous condition, losing at times, for considerable periods, all self-control, suffering greatly from pains in her body.

Plaintiff's third instruction was as follows:

"The term `negligence,' as used in these instructions, means a failure to exercise ordinary care. Ordinary care is that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances."

Among defendant's instructions were the following:

(1) "The court instructs the jury that the defendant did not undertake to insure or absolutely guarantee the safety of the plaintiff; that the defendant was not bound to have its passenger elevator and machinery absolutely safe, nor did the law require the defendant to adopt every precaution to prevent plaintiff from being injured, and the defendant, in operating and maintaining said elevator, was only required to use that degree of care which a prudent common carrier would exercise under like circumstances."

(2) "The court instructs the jury that there is no evidence in this case tending to show that any part of the elevator in which plaintiff was riding or any part of the elevator machinery connected therewith was defectively or improperly constructed."

(8) "You are instructed that the plaintiff cannot recover for any fright, terror, alarm, anxiety, or distress of mind caused by or resulting from the descent of defendant's elevator, if these were unaccompanied by some physical injury.

"You are futher instructed that if you believe, from the evidence, that plaintiff's present condition is the result of a fright or scare only, then plaintiff cannot recover in this case."

Chas. M. Howell and Jos. S. Brooks, both of Kansas City, for appellant. McCune, Caldwell & Downing and Harold M. Noble, all of Kansas City, for respondent.

ROY, C. (after stating the facts as above).

I. The second instruction for the defendant was error. It told the jury that there was no evidence that the elevator or its machinery "was defectively or improperly constructed." Orcutt v. Century Building Co., 201 Mo. 424, 99 S. W. 1062, 8 L. R. A. (N. S.) 929, was a suit for damages for an injury suffered by one who was being carried in a passenger elevator. It was there held that a corporation running such an elevator is a carrier of passengers, the same as the operator of a stagecoach or a railroad. It was also there said:

"Defendants by this instruction placed upon the plaintiff the burden of showing the cause of the accident; whereas in such cases it is sufficient to show the accident and the attendant circumstances and conditions, when negligence will be presumed, and thereupon the burden is shifted to defendant to show that there was no negligence in the operation and construction of the elevator."

A long list of cases is there cited. It follows that, when it is shown that a passenger is injured by such failure of the elevator car to stop at the proper place, such fact is evidence of negligence, and it is so strong that it raises a presumption of such negligence on the part of the owner of the car. The law does not undertake to say at what point such negligence occurred, but it does say that it is presumed to be in permitting the existence of some defect in the construction of the car or its machinery, or some fault in the manner of its operation. That presumption throws on the defendant the burden of proving "that there was no negligence in the operation and construction of the elevator." The glaring error of that instruction will appear when attention is called to the fact that defendant was just as much entitled to an instruction saying that there was no evidence of negligence in the operation of the car. If defendant was entitled to one, it was entitled to both, and that would clearly mean that it was entitled to have a demurrer to the evidence sustained; and the firmly established doctrine of res ipsa loquitur would be repudiated in this case. The presumption that there was negligence in permitting the existence of some defect in the construction of the car cannot be met and overcome by an instruction, but it must be overcome by evidence.

The respondent's brief contains this language:

"Under the res ipsa loquitur doctrine, the sole inference or presumption is that there was some negligence at the very time of the alleged accident and that alone. Accordingly the court committed no error in instructing the jury that there was no evidence that this elevator, constructed 23 years before, and shown to have been changed a number of times since then, was defectively or improperly constructed, as this clearly refers to the initial construction."

In answer to that we say that instructions are supposed to be written in plain, non-technical language, for the comprehension of laymen, the jury. We have no doubt that the instruction was understood by the jury to refer to the condition of the car as it was at the time of the occurrence in question. Even if the instruction has the meaning which respondent now seeks to give it, it was error. From the fact that the elevator could not be controlled, or was not controlled, the law presumes negligence. It is presumed that such negligence consisted in the fact that some...

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37 cases
  • Charlton v. Lovelace, 38480.
    • United States
    • Missouri Supreme Court
    • July 6, 1943
    ...S. Ry. Co., 144 S.W. 783, 239 Mo. 695; Partello v. Mo. Pac. Ry. Co., 145 S.W. 55, 240 Mo. 122; McCardle v. George B. Peck Dry Goods Co., 195 S.W. 1034, 271 Mo. 111; Orcutt v. Century Building Co., 112 S.W. 533, 214 Mo. 35; Cooper v. Century Realty Co., 123 S.W. 848, 224 Mo. 709; Thompson v.......
  • Tate v. Western Union Telegraph Co., 30035.
    • United States
    • Missouri Supreme Court
    • December 1, 1934
    ...Rapid Transit Co., 224 Pa. 13, 73 Atl. 4; Perkins v. Wilcox, 294 Mo. 700, 242 S.W. 975; McCardle v. Peck D.G. Co., 271 Mo. 120, 195 S.W. 1034; Porter v. St. Joseph Ry., etc., Co., 311 Mo. 71; Gibbons v. Wells, 293 S.W. 389. (3) The testimony of the witness F.W.L. Peebles is so contrary to t......
  • Hyde v. City of Columbia
    • United States
    • Missouri Court of Appeals
    • June 15, 1982
    ...(1908). That rationale rests the recovery of damage on the distinction between conduct only negligent (McCardle v. George B. Peck Dry Goods Co., 271 Mo. 111, 195 S.W. 1034, 1036 (1917) ) and conduct actuated by a state of mind (Trigg v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 147, 153 (1881) ......
  • Bass v. Nooney Co., 63926
    • United States
    • Missouri Supreme Court
    • February 23, 1983
    ...membership in society, without resort to the courts for the redress of every imaginable grievance. 3 In McCardle v. George B. Peck Dry Goods Co., 271 Mo. 111, 195 S.W. 1034 (1917), plaintiff was a passenger on an elevator which failed to stop at the first floor and passed on down to the bot......
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