Baldwin v. Hanley & Kinsella Coffee Co.
| Decision Date | 02 December 1919 |
| Citation | 216 S.W. 998,202 Mo.App. 650 |
| Parties | EMMETT BALDWIN, Respondent, v. HANLEY & KINSELLA COFFEE CO., Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon William T. Jones, Judge.
AFFIRMED.
Judgment affirmed.
Clarence T. Case and Victor J. Miller for appellant.
(1) The rule in Missouri is that where plaintiff has, by a negligent act on his part, directly contributed to his own injury, he may not recover, regardless of how his carelessness compares with the other contributing causes of the injury. Newton v. Wabash Railroad Company, 152 Mo.App. 67; Burnett v. Railroad Company, 172 Mo.App. 51; Schmidt v. St Louis Railroad Company, 149 Mo. 287; Rogers v Packing Company, 185 Mo.App. 99; Bathe v. Stave Company, 199 Mo.App. 127; Neal v. Gillett, 23 Conn. 443. (2) One whose eyesight is impaired must use a degree of care beyond the usual and ordinary, proportionate to the degree of impairment of his vision. Karl v. Juniata County, 206 Pa. St. 633. (3) The ordinance relied on by the plaintiff in this case does not require that some operator must be in constant charge of and on guard at the elevator. Purcell v. Tennent Shoe Co., 187 Mo. 276. (4) The verdict is manifestly excessive. Winkleblack v. Great Western Manufacturing Company, 187 S.W. 95; Applegate v. Q, O. & K. C. Railroad Company, 252 Mo. 173; Brady v. Railroad, 206 Mo. 509; Kinney v. Metropolitan Street Railroad, 261 Mo. 97; Farrer v. Railroad, 249 Mo. 210; Lessenden v. Missouri Pacific Railroad Company, 238 Mo. 247.
Taylor, Chasnoff & Willson and Wilfley, McIntyre, Nardin & Nelson for respondent.
(1) It is the duty of an employer to exercise ordinary care to provide for his employees a reasonably safe place in which to work. Appellant violated this duty in three particulars. (a) In failing to provide lights. (b) In failing to comply with the city ordinance governing the operation of power elevators. (c) In failing to provide sufficient signals for the operation of the elevator. Yost v. Atlas Portland Cement Co., 191 Mo.App. 422; Dunlap v. Mallinckrodt Chemical Works, 159 Mo.App. 49; Channon Co. v. Hahn, 189 Ill. 28; DeLate v. Loose-Wiles Biscuit Co., 213 S.W. 885. (2) In passing upon the demurrer to the evidence the evidence must be viewed in the light most favorable to plaintiff, giving him the benefit of every influence favorable to him which may be fairly and reasonably drawn therefrom. The questions of defendant's negligence and of plaintiff's contributory negligence were properly submitted to the jury under this rule. Beckman v. Jewelry Co., 175 Mo.App. 279, 284; Jacobi v. Realty Co., 164 P. 394, L. R. A. 1917 E. 696; DeLate v. Loose-Wiles Biscuit Co., 213 S.W. 889; Aitken v. Sidney Steam Scraper Co., 198 S.W. 1139; Wendler v. Peoples H. F. Co., 165 Mo. 527; Channon Co. v. Hahn, 189 Ill. 28; Barfoot v. White Star Line, 170 Mich. 349; People's Bank v. Morgolofski, 75 Md. 432; Dawson v. Sloane, 49 N.Y. 304; Shoninger v. Mann, 219 Ill. 242. (3) Defendant failed to make an offer of proof in every instance where testimony offered by it was excluded by the court. There is, therefore, nothing before this court to review with respect to this testimony. The trial court cannot be convicted of error where no offer of proof is made. Holzemeyer v. Metropolitan St. Ry. Co., 261 Mo. 411; State v. Arnold, 206 Mo. 597; Louis v. Louis, 134 Mo.App. 566. (4) There was no error in permitting witness Crenshaw to testify that the basement lights, when lighted, illuminated the shaft and floor of the elevator room. This was clearly admissible under the pleadings and had already been established by the testimony of other witnesses, to which no objection had been made. Moore et al. v. McCutcheon et al., 190 S.W. 350; Roe v. City of Kansas, 100 Mo. 190; Insurance Co. v. Railroad, 171 Mo.App. 70-80; Fuller v. Robinson, 230 Mo. 22, 56; Lindsay v. Kansas City, 195 Mo. 181. (5) The verdict of $ 5000 is not excessive compensation for the injuries sustained by respondent. Bamber v. United Rys. Co., 196 S.W. 953; Dean v. Wabash Rd. Co., 229 Mo. 425; Washington-Virginia Co. v. Bouknight, 113 Va. 696; Mueller v. Washington Power Co., 106 P. 476; Boten v. Sheffield Ice Co., 180 Mo.App. 112.
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 $ 5000, 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 enclosed 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.
[SEE DRAWING IN ORIGINAL]
The main building was at least four stories in height and the elevator was a freight elevator, operated by the various employees of defendant in the course of its business; no special operator being at any time in charge thereof. When an employee 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 fifteen or twenty feet away. It is said that it could not be heard in the wareroom mentioned. An employee, 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 anyone, 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 employees 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 twenty 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 anyone 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...
To continue reading
Request your trial