Lee v. Publishers: George Knapp & Co.

• Decision Date: 14 March 1900
• Court: Missouri Supreme Court
• Parties: LEE v. PUBLISHERS: GEORGE KNAPP & CO.

56 S.W. 458

155 Mo. 610

LEE v. PUBLISHERS: GEORGE KNAPP & CO.

Supreme Court of Missouri, Division No. 1.

March 14, 1900.

NEGLIGENCE — ELEVATOR — INCOMPETENT OPERATOR — QUESTION FOR JURY — WITNESS — OPINION EVIDENCE — PASSENGER ELEVATOR — DUTY OF OWNER — WRONGFUL DEATH — ACTION — DAMAGES.

1. Defendant maintained in its building an elevator, which, when in operation, had an excessive lateral vibration. It had no door on the cage, but the exits from the car were through vestibules cut through the wall of the elevator shaft, which was about 16 inches deep, with a door on the outside, so that a passenger losing his balance might fall from the car into the vestibule, and roll from there into the elevator shaft. The elevator, on the night plaintiff's son was killed, was operated by a boy about 15 years old. He told decedent, when the car was at the third floor, that it was at the fourth floor, and the decedent knowing that the car stopped automatically at the fifth floor, and thinking that the car, when actually at the fourth floor, was at the fifth floor, may have stepped into the vestibule while the car was in motion, from whence he fell into the elevator shaft, and was killed. The evidence was indefinite as to how the accident occurred. Held to require submission to the jury of the questions whether the defendant was negligent in maintaining the elevator in the condition in which it was in, and in employing an incompetent operator.

2. It was not error to refuse to permit an expert to state how the construction of such elevator would compare, in safety with the method of having the door against the car itself since it was the opinion of the witness concerning a matter of common knowledge.

3. It is the duty of the owner of a building maintaining an elevator for the carriage of passengers to use the highest degree of practicable care which prudent men would observe in like circumstances, and he is bound to use the utmost care in the choice and maintenance of machinery and appliances, and is liable for the negligence of an operator, irrespective of the degree of care exercised in his employment.

4. In an action to recover for the wrongful death of plaintiff's son, caused by alleged defects in defendant's elevator, it was not obligatory on plaintiff to allege the mode in which the defects or negligent acts alleged operated to produce the fatal result.

5. Under Rev. St. 1889, § 4426, a mother, where the father is dead, may maintain an action against the owner of a building to recover for the wrongful death of her son.

6. In an action by a mother to recover for the wrongful death of her son, who was 12 years old, and at the time of his death earning a salary of $20 a month, a verdict of $3,500 is not so excessive as to authorize setting it aside as having been rendered under the influence of passion or prejudice.

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by Elizabeth Lee against Publishers: George Knapp & Co. to recover for the wrongful death of her minor son. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. F. Lee, for appellant. A. R. Taylor and Virgil Rule, for respondent.

BRACE, P. J.

On the 12th of September, 1892, General Robert E. Lee, a boy about 12 years of age, generally known by the name of Willie, was killed by a fall from the cage or car of an elevator belonging to and being operated by defendant in its five-story building on the corner of Third and Chestnut streets in the city of St. Louis. This action was originally brought by the father and mother of said child to recover damages for his death, and upon a trial thereof resulted in a verdict and judgment for the plaintiffs in the circuit court for the sum of $1,600. On appeal by defendant from that judgment to the St. Louis court of appeals, the same was reversed for error in giving an instruction. 55 Mo. App. 390. Upon a second trial in the circuit court, the jury returned a verdict for the plaintiffs for one cent damages, and on motion that verdict was set aside, and a new trial granted by that court. From that order the defendant appealed to this court, where the order granting a new trial was sustained. 137 Mo. 385, 38 S. W. 1107. The father having died in the meantime, the suit was thereafter prosecuted by the respondent, Elizabeth Lee, his mother, as sole party plaintiff, and upon the third trial she obtained a verdict and judgment for $3,500, from which judgment the defendant appeals, assigning as error: (1) The refusal of the court to sustain defendant's demurrer to the evidence. (2) The sustaining by the court of plaintiff's objections to certain questions propounded for the defendant. (3) The giving of instruction numbered 1 for the plaintiff, and an instruction on its own motion, and the refusal to give instructions 2, A, 8, and 10 for the defendant. (4) The refusal of the court to set aside the verdict for excess of damages.

In consequence of the death of her husband, the plaintiff, on the 13th of May, 1897, filed an amended petition, setting up therein the original cause of action, the gravamen of the charge being that, while her said son was a passenger upon defendant's said passenger elevator, he fell from said elevator, and sustained such injuries that he was thereby immediately killed; and plaintiff avers that said elevator at said time was in a defective and dangerous condition; that the construction of said elevator was such that the car or cage of said elevator in which plaintiff's said son was being so carried as a passenger, in passing the doorways of the several floors of said building and elevator shaft, was defective; that there was an open space between the floor of said elevator car and the door of the elevator of the dimensions of 2½ feet in depth, 3 feet in width, and 8 feet in height, making a dangerous hole or trap, into which the passengers upon said elevator were likely to fall; that said elevator and shaft were also in a further defective condition, in that in the running of said elevator it would shake and was unsteady. And plaintiff further charges that defendant, at the time of the death of her son, was further negligent in having in charge of said elevator an inexperienced servant controlling same, who did not understand the operation of said elevator; that on the date aforesaid, while plaintiff's said son was such passenger upon said elevator, by reason of the negligent construction of said elevator and shaft and doorways, and by reason of said defective condition of said elevator in so running unsteady, and by reason of the negligence and unskillfulness of defendant's servant in charge of said elevator, the plaintiff's son was, while such passenger, caused to be thrown or fall from said elevator car and to be thereby killed. The answer was a general denial and a plea of contributory negligence. The evidence in the case upon which the legal questions to be determined arise on this appeal is, in substance, as follows:

Plaintiff's Testimony.

Elizabeth Lee, plaintiff, testified to the death of her son on the 12th of September, 1892, that his age at that date was 12 years, and that he was earning $20 per month, as a messenger boy for the Western Union Telegraph Company, and that her husband died on the 6th of May, 1896.

Andrew Aylward testified: That he was a telephone operator for the St. Louis metropolitan police department at the Fifth district police station, Tenth and Market, and that he had been at work there three years; that in September, 1892, he was engaged as report boy for the Western Union Telegraph Company that at the time he was about 13 years old and weighed about 80 pounds; that he knew the Lee boy; that the latter generally worked downstairs, and used to go on duty at 6 o'clock and worked until 2 o'clock; that the Lee boy used to work until 10 carrying messages, and at 10 used to go upstairs, and carry messages with witness to the newspaper offices for the Associated Press, among others to the St. Louis Republic; that he was in the elevator the night the Lee boy was killed; about 12 or 1, — between the hours of 12 and 1; that just three were in the elevator, — the witness, the Lee boy, and the elevator boy; that the elevator boy was about the same size as the other two, possibly a little larger, and was a mulatto. The Lee boy was going to the fifth floor, to take the reports he had up to the office, to a Republic man whose name was Lawson or Dawson. The elevator was on the Chestnut street side, and no other elevator was running in the building at that time of night. It was a passenger elevator, and the Lee boy fell off on the fourth floor. "Q. Right at the landing, or where? What was the first thing you saw of the Lee boy? A. Me and this Willis, we were talking. Q. Willis was the name of the elevator boy? A. Yes, we were talking, and we heard the halloo, and I turned around, and saw the Lee boy on his face and hands on the space of the floor. I made a grab for his feet, and as I did the elevator went up more, and he swung and went down. Q. Was that the position he was in when you first saw him? [Handing paper to witness.]

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

"Q. I will ask you now if that diagram indicates the position in which you saw the boy at the time? A. Yes, sir. Q. What was your position when you heard the boy halloo? A. I don't know whether my back was turned towards him, or my side towards him. I was standing in front of the Willis boy. Q. Where was the Lee boy the last time you saw him before you saw him in the open space? A. He was standing in the corner opposite where we were standing. Q. In reference to the points of compass, which corner of the elevator was he in? A. The southeast corner as you go into the building. You go in the elevator where the rope is. It is on this side [indicating], and on that side he was standing. Q. The rope is on the west side, and he was standing on the east...