80 S.W. 364 (Mo.App. 1904), Glasscock v. Swafford Bros. Dry Goods Co.

Citation:80 S.W. 364, 106 Mo.App. 657
Opinion Judge:BROADDUS, J.
Attorney:Pratt, Dana & Black for appellant. H. J. Latshaw, Jr., and E. M. Perdue for respondent.
Case Date:April 04, 1904
Court:Court of Appeals of Missouri

Page 364

80 S.W. 364 (Mo.App. 1904)

106 Mo.App. 657




Court of Appeals of Missouri, Kansas City

April 4, 1904

Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.


Cause reversed.

Pratt, Dana & Black for appellant.

(1) There is no evidence that plaintiff's injury was caused by any actionable negligence of defendant, and hence a verdict should have been ordered in its favor. As to the presumptions: Wood's Master and Servant, sec. 382; 2 Thompson on Negligence, sec. 48, p. 1053; Railroad v. Wagner, 33 Kan. 666; Jewett v. Railroad, 50 Mo.App. 551; Nolan v. Shickle, 3 Mo.App. 305; O'Donnell v. Baum, 38 Mo.App. 249; Smith v. Railroad, 113 Mo. 82. (2) As to facts necessary to be affirmatively proved: (a) The burden rested upon plaintiff of affirmatively proving negligence on the part of defendant. Gurley v. Railroad, 104 Mo. 223; Perse v. Railroad, 51 Mo.App. 171; Yarnell v. Railroad, 113 Mo. 570; Dowell v. Guthrie, 116 Mo. 646; Bowen v. Railroad, 95 Mo. 268; Murray v. Railroad, 101 Mo. 236; Brown v. Lumber Co., 65 Mo.App. 165; Norville v. Railroad, 60 Mo.App. 416; Fuchs v. City, 167 Mo. 635; Musick v. Packing Co., 58 Mo.App. 330; Krampe v. Assn., 59 Mo.App. 277. (b) And not only did the burden rest upon plaintiff of affirmatively proving some such negligence or failure of duty on the part of defendant, but plaintiff was limited to and the burden rested upon him of proving negligence as alleged in his petition. Ravenscraft v. Railroad, 27 Mo.App. 617; Pryor v. Railway, 85 Mo.App. 378; Hite v. Railway, 130 Mo. 132; Jacquin v. Cable Co., 57 Mo.App. 320. (c) Furthermore, the burden rested upon plaintiff, after proving some failure, as above stated on the part of defendant in discharging its duty to plaintiff, to also prove that such failure was not only the cause but the proximate cause of his injury. Killian v. Railway, 86 Mo.App. 476; Brown v. Railway, 20 Mo.App. 227; Cooley on Torts, p. 69; 1 Jaggard on Torts, p. 62, par. 24, and many authorities there cited. (3) On the record and so far as defendant is concerned plaintiff's injury was in law an accident.

H. J. Latshaw, Jr., and E. M. Perdue for respondent.

(1) Under the circumstances of this case it was not incumbent upon respondent to prove the exact reason or cause of the accident. The very fact itself that the elevator door fell, under the circumstances, was of itself sufficient to entitle respondent to go to the jury. Tateman v. Railroad, 70 S.W. 514; Crane v. Railway, 87 Mo. 594; 103 Mo. 328; Breem v. Cooperage Co., 50 Mo.App. 202; Bowen v. Railroad, 95 Mo. 268. (2) Appellant lastly contends that on the record, and so far as appellant is concerned, respondent's injury was in law an accident; but the cases cited in support of this contention do not appear to us to be parallel cases.


[106 Mo.App. 659] BROADDUS, J.

This is an action brought by plaintiff against defendant, a business corporation, to recover damages for personal injuries

Page 365

claimed to have been received by the former on account of the negligence of the latter. The defendant occupies for the transacting of its business, which is that of wholesale dry goods, a large building several stories in height situate in Kansas City, Missouri. The plaintiff on and some time before September 27, 1900, was and had been [106 Mo.App. 660] in the employ of defendant, and his duties as such employee were in part to remove goods from one story of said building to another, as required, and in performing these duties he and a coemployee were furnished with the exclusive use of a freight elevator which was against the north wall of the building and which had in front and across the entrance to it a safety gate about three feet high, weighing something like twenty-five pounds, which worked automatically with the ascending or descending of the elevator; that is, when the elevator reached any floor of the building in ascending or descending, the gate would rise so that the entrance to the elevator would be open while it stood opposite any floor, and closed when it was above or below. The plan of the gate and its attachments were such that when the elevator approached a floor from above or below, an arm attached to the latter moved a horizontal bar and thereby caused a wood sheave carrying the rope to revolve and take it up, and in that way raise the gate. The rope extended from the circumference of the wood sheave to...

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