Baldwin v. Hanley & Kinsella Coffee Co.

• Decision Date: 02 December 1919
• Docket Number: No. 15557.,15557.
• Citation: 202 Mo. App. 650,216 S.W. 998
• Parties: BALDWIN v. HANLEY & KINSELLA COFEE CO.
• Court: Missouri Court of Appeals

216 S.W. 998

202 Mo. App. 650

BALDWIN v. HANLEY & KINSELLA COFEE CO.

No. 15557.

St. Louis Court of Appeals. Missouri.

December 2, 1919.

Appeal from St. Louis Circuit Court; Win. T. Jones, Judge.

Action for personal injuries by Emmett Baldwin against the Hanley & Kinsella Coffee Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clarence T. Case, of St. Louis, for appellant.

Wilfley, Wiltley, McIntire & Nardin, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant. The trial below resulted in a verdict and judgment for plaintiff in the sum of $5,000, and the defendant prosecutes the appeal.

At the time of plaintiff's injury, defendant conducted its business in a building situated on the north side of Spruce street in the city of St. Louis, facing to the south. The ground floor of this building contained a "general office," to which the main entrance to the building led. In the rear was an L-shaped "elevator room," separated from the general office by partitions and by an inclosed elevator shaft. This elevator shaft faced west and opened into that part of the elevator room which extended farthest south, the rear end of that room extending entirely across the building. Immediately north of this building was another building, containing, on the ground floor, defendant's warehouse which was separated from the elevator room by a brick wall common to the two buildings. Near the northeast corner of the elevator room a door led from that room into the storeroom. The arrangement of these rooms, and the location of the elevator shaft, etc., will more fully appear from the drawing appearing herewith. It seems that this drawing, prepared by appellant, was not the one introduced in evidence below, the latter having been lost; but it is conceded that it is substantially correct, and it suffices for our purposes:

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

The main building was at least four stories in height and the elevator was a freight elevator, operated by the various employés of defendant in the course of its business; no special operator being at any time in charge thereof. When an employé on any one of the floors desired to use the elevator, and did not find it at that floor, the custom was to reach into the shaft and shake or "jangle" one of the cables, which made a noise that could be heard by one at or near the elevator. There is some controversy in the testimony as to how loud this noise was, but the evidence for plaintiff is to the effect that it could be heard only 15 or 20 feet away. It is said that it could not be heard in the wareroom mentioned. An employé, upon any floor, desiring to use the elevator when it was at another floor after shaking the cable and hearing no call or warning from any one, would pull the operating rope, thus bringing the elevator to the floor upon which he stood. It is said that when the rope was pulled downward the elevator was caused to ascend and vice versa. It appears that defendant had previously installed a system by means of which a bell would be rung when the elevator was to be used, but that this device was out of order at the time of plaintiff's injury and had been so for a long time prior thereto.

Shortly prior to plaintiff's injury, he was working upon the fourth floor of this building. He desired to get certain boxes from the storeroom north of the elevator room on the first floor, mentioned above. The evidence shows that he entered the elevator at the fourth floor and descended therewith to the first floor where he caused the elevator to stop; that he thereupon raised the elevator gate at this floor—a light wooden gate— and secured it in that position by means of a rope attached thereto which he fastened to a hook provided for that purpose. He thereupon proceeded across the elevator room to the door near the northeast corner thereof leading into the storeroom, and entered that room. The route which he took is approximately shown by the curved line on the annexed drawing. Having obtained two boxes, he retraced his steps to the entrance of the elevator shaft. The testimony for plaintiff, shows that at that time no artificial light was burning in the elevator room, though electric lights were provided therein, one of which was situated near the entrance to the elevator shaft. Though perhaps some little light came through the glass portion of the partition between this room and the general office, the evidence shows that no light could enter the room from the outside of the building ; that even upon bright days it was necessary to have artificial lights in order to discern objects" with any clearness in this room; and that at the time of plaintiff's injury the room was dark. Plaintiff's evidence further tends to show that defendant had posted a sign not far from the elevator, in this elevator room, notifying employés to turn off the lights there upon leaving the room.

The evidence further shows that this elevator shaft extended below the first floor to the basement, a distance of about 20 feet; that in the basement near the shaft was situated an electric light; and that defendant's rules required that this light in the basement be kept burning at all times. And the evidence, when viewed in the light most favorable to plaintiff, shows that it was customary to keep this light burning at all times, and that when burning it cast light upward through the elevator shaft, and that this illumination of the shaft was plainly discernable by any one on the first floor when the elevator was not at that floor, but that when the elevator was at the first floor it hid from view the light thus cast into the shaft from the basement. While plaintiff was making this trip into the storeroom and returning therefrom—he says that he was gone but a brief interval, perhaps about one minute—a boy in defendant's employ, one Drodhage, then a lad not quite 16 years of age, removed the elevator from the first floor. His testimony shows that he was upon an upper floor, and, desiring to use the elevator, he went to the elevator shaft, saw that the elevator was below him at the first floor, and shook or "jangled" the cable mentioned, as was the custom, and that, hearing no response or warning, he pulled the operating cable and caused the elevator to ascend. When plaintiff returned from the wareroom to the elevator shaft, not having heard the "jangling" of the cable—which, it may be inferred, occurred while he was in the wareroom—and being in ignorance of the fact that the elevator had been removed from the first floor, he walked into the shaft, supposing that he was stepping upon the elevator, and relying, in part at least upon the fact that in the absence of the elevator the shaft would be lighted by the basement light mentioned above, which would indicate that the elevator had been removed. Plaintiff fell to the bottom of the shaft, sustaining serious injuries.

The petition charges negligence on the part of defendant in failing to exercise ordinary care to provide lights "sufficient to render the said first floor a safe place to work."

The petition further sets up that there was in force and effect in the city of St. Louis a certain ordinance, being section 2097 of chapter 28 of the Revised Code of St. Louis, Ordinance No. 26653, requiring all users of power elevators to employ a competent person to operate and, run the same who shall have a proper knowledge of all parts of the machinery and the working of the elevator of which he may have charge, and who shall not be less than 16 years of age, industrious, and of sober habits. And it is charged that defendant failed to comply with this ordinance, in that defendant failed to employ a competent person to operate the elevator in question, either on the first or any other floor of the building, but instructed all of its employés to operate the elevator whenever the same was necessary in the performance of their duties; that none of said employés were competent persons to operate the elevator; and that because of said violation of the ordinance by defendant the elevator was run and operated in a dangerous manner, which rendered the first floor of the building an unsafe place to work.

And it is alleged that the method of operating the gates at the elevator shaft was dangerous and unsafe, and rendered the said first floor an unsafe place to work.

It is further charged that the manner of operating the elevator, by allowing any employé upon any floor to pull the operating cable, was a negligent method; that defendant was negligent in failing to exercise ordinary care to provide signals to indicate when the elevator was about to be used by an employé, and negligent in failing to instruct its servants to give any signal of the removal of the elevator sufficient to serve as a warning to such other servants of defendants as might then be at work upon the first floor; and that such method of operation of the elevator was unsafe and dangerous and rendered the first floor an unsafe place to work.

The answer is a general denial coupled with a plea of contributory negligence. The ordinance pleaded in the petition was introduced in evidence.

Some further features of the evidence will be referred to in the course of the opinion. I. It is insisted by learned counsel for appellant that the trial court erred in refusing to give a peremptory instruction, in the nature of a demurrer to the evidence, offered by the defendant at the close of plaintiff's case and again at the close of the entire case.

The argument upon this assignment of error appears to proceed upon the theory that the evidence was such as to convict plaintiff of contributory negligence as a matter of law, barring a right of recovery. It does not appear to be seriously contended, if at all, that no negligence was shown on the part of defendan...