Glasscock v. Swofford Bros. Dry Goods Co.

• Decision Date: 04 April 1904
• Citation: 80 S.W. 364,106 Mo. App. 657
• Parties: GLASSCOCK v. SWOFFORD BROS. DRY GOODS CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

80 S.W. 364

106 Mo. App. 657

GLASSCOCK v. SWOFFORD BROS. DRY GOODS CO.^*

Kansas City Court of Appeals. Missouri.

April 4, 1904.

SERVANT'S INJURIES — DUTY OF EMPLOYER — SAFE APPLIANCES—SAFE PLACE TO WORK— ASSUMPTION OF RISK — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE—BURDEN OF PROOF— PRESUMPTIONS.

1. An employer is not an insurer of the safety of the place in which or the appliances with which the employé works, nor responsible for not providing against all possible and unanticipated happenings, but he is only held to exercise ordinary care in furnishing a place and appliances which are reasonably safe, so far as the nature of the employment permits, and not to expose the employé to any unknown risks not ordinarily incident to the employment.

2. The presumption is that the employer has discharged his duty in providing for the employé suitable appliances for the work, and in keeping them in that condition, and the burden is on the employé to establish negligence on the employer's part and due care on his own part.

3. There is a presumption that the employé assumes all the ordinary and usual hazards of his employment, and to overcome this presumption he must prove that the injury did not arise from obvious defects in the appliances, or from a hazard incident to the employment.

4. In order that an employé may recover against his employer for injuries, he must affirmatively prove the nonfulfillment or nonperformance of some duty or obligation owing him by his employer, and, in the absence of affirmative proof of negligence of the employer, the simple fact of injury is attributable presumptively to misadventure, inevitable fate, or other cause for which the employer is not liable.

5. To recover for injuries an employé must show not only that there was a defect in the place or appliance which caused the injury, but that it was known or could have been known to the employer, had he exercised ordinary care.

6. In an action for servant's injuries, the fact that certain appliances had been in the habit of working improperly is sufficient to justify an inference that the employer knew, or, by the exercise of reasonable care could have known, of their defective condition.

7. The credibility of testimony is a question for the jury.

8. Where an employé knew that the appliances with which he worked had been operating improperly for several months, and that a break would naturally result, he was guilty of contributory negligence in not calling attention to the defect.

On Rehearing. Reversed.

For former opinion, see 74 S. W. 1039.

BROADDUS, J.

This is an action brought by plaintiff against defendant, a business corporation, to recover damages for personal injuries 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, Mo. The plaintiff on and some time before September 27, 1900, was and had been in the employ of defendant, and whose duties as such employé were in part to remove goods from one story of said building to another, as required, and in performing these duties he and a co-employé 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 3 feet high, weighing something like 25 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 which it was fastened upwards diagonally to where it passed over two pulleys, the second of which was directly above the center of the gate, and from the latter to the gate itself, and vertically along it to its bottom slat, when said rope passed through a horizontal hole therein, and was there held by a knot tied in the end of it. Accordingly, the height to which the gate would ascend depended upon the length of the rope just referred to. The shorter the rope, the higher it would ascend. The height to which it could be made to reach could be regulated by pulling the rope further through the slat, and then tying another knot in it further from the end. The elevator gates and appliances connected therewith were all comparatively new, having been in use not over nine months. The rope by which the gate was raised was of the diameter of seven-sixteenths of an inch, the size and kind generally used for such purpose. It was one of the duties of the plaintiff and his co-employé engaged with him in the performance of the same work to report anything in the elevator or its attachments or appliances which they noticed to be wrong; said report to be made to one Smith, engineer of the building. It was the duty of the latter to daily inspect the elevator gates and other appliances connected therewith, and it appears that he had performed this duty the day of the injury, and preceding the hour in which it occurred, and that he had found everything in good order, and working right. On the day of the injury the plaintiff used the elevator until lunch time, noticing nothing unusual in it, or the gate, or any attachment to either. After plaintiff had returned to his work, he had picked up a truck load of goods on the fourth floor, and was ready to descend to the packing room in the basement, but he found the elevator not at that floor. He testified that, in order to move it there, he reached over the gate, took hold of the elevator rope and pulled down, and that this started the elevator up, and as it reached the floor on which he was standing the gate moved up some distance, when he reached under it to catch hold of the rope in order to stop it; and while in that position he was struck on the head by something. As to exactly what struck him he seems not to have been entirely certain. He at first testified that it was the gate, and afterwards that he did not know what it was. No one was present when the injury occurred, but he was found lying in an unconscious condition on the elevator floor with the gate down. He was severely hurt. An examination of the elevator and gate disclosed that the rope which ran from the pulley down to the gate had been broken between the top and bottom of the latter. It was a clean transverse break of it. When the gate was put in the knot was tied in the end of the rope so as to give it the length required for the proper operation of the gate. The expert testimony was that, if too short, the effect would be to lift the gate up until it came in contact with the pulley. When it broke there was found to be a second knot in it, which shortened it from four to six inches. There was a dent in the center of the top of the gate just where it would strike the pulley if lifted high enough to come in contact with it. It was testified by the engineer, Smith, that the striking of the pulley by the gate would tend to break the rope, and that, if the second knot had not been tied in the rope, whereby it was shortened, the length allowed by the first knot tied at the end would not have subjected it to such tension as would have caused it to break. He further testified that by the inspection made by him in the morning before the injury he discovered that the rope was long enough, and in good condition; that there was no indication of any wear or tension, or anything of that kind; that the gate did not then bump against the pulley at all; and...