Bartlett v. Pontiac Realty Co.

• Decision Date: 15 September 1930
• Docket Number: No. 21063.,21063.
• Citation: 31 S.W.2d 279
• Parties: BARTLETT v. PONTIAC REALTY CO.
• Court: Missouri Court of Appeals

31 S.W.2d 279

BARTLETT v. PONTIAC REALTY CO.

No. 21063.

St. Louis Court of Appeals. Missouri.

September 15, 1930.

As Modified on Denial of Rehearing, October 16, 1930.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

Action by Katherine Bartlett against the Pontiac Realty Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Buder & Buder and E. E. Schowengerdt, all of St. Louis, for appellant.

Paul Koenig, John S. Marsalek, and Kelley, Starke & Hassett, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff while in the employ of defendant, as the operator of a passenger elevator, in the Buder Building, located at the northwest corner of Seventh and Market streets, in the city of St. Louis.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $5,000, and judgment was given accordingly. Defendant appeals.

Plaintiff received the injuries for which she sues through the falling of the elevator she was operating. The accident occurred on September 4, 1926, at about 2:30 or 3 o'clock in the afternoon. Plaintiff had been in the employ of defendant as operator of the elevator for about a year prior to her injury. Her duties in connection with the elevator were merely as operator. She had nothing to do with the care or maintenance, and knew nothing of the details of the construction of the elevator, or its mechanism. While she was operating the elevator, it fell down the shaft from the thirteenth floor of the building to the ninth floor, where it stopped with a violent and unusual jerk, whereby she received the injuries for which she sues. She testified that just before the car fell it was stationary at the thirteenth floor; that she was waiting for a signal from the elevator starter; that the controller she operated the car with was in the groove of the controller box, which was the proper position to hold the car stationary; that she did not have her hands on the controller at all at the time the car dropped; that the car dropped from the thirteenth to the ninth floor; that she was standing at the time; that it started down so abruptly she did not know what was the matter, but that she felt that the car was falling; that it stopped with such a jolt or jerk it threw her back against the stool she used in the car, and knocked the stool over; that her back, as she fell, struck the stool; that her head hit on the side of the car, and she fell onto the floor of the car; that when she took the car after the lunch hour she noticed that the car was running uneven; that whenever she started it up it would start off slow, and then start off sudden, and when it would stop it would stop with a jolt, shaking all over, and it would stand stationary for an instant and then start again; that this was before the car dropped; that when the car dropped it stopped by itself; that she did not stop it; that before the car dropped she reported its unusual behavior to Mr. Henry Barth, the building manager; that she said to him: "Mr. Barth this elevator is out of order. It is going the same way it did when we fell with the Western Union Telegraph boy. You should report it at once." That Mr. Barth said: "I will." That she continued to work on the elevator because she thought Mr. Barth was going right away to report its condition to the electrician.

Defendant introduced in evidence plaintiff's deposition, taken some time before the trial, in which she stated her conversation with Mr. Barth, with respect to the unusual behavior of the elevator, as follows: "I said, `Mr. Barth, this elevator is acting like it did before.' I had an accident once before on the same elevator. I said: `You should call the electrician, tell him right away.' He said: `I will.'"

Defendant offered evidence tending to show that there was an ordinary controller in the car for the use of the operator; that by moving the controller the car could be caused to move up or down, or to stop; that the elevator was geared to a speed of 450 feet per minute; that underneath the car there were brakes which would automatically operate and bring the car to a stop if its speed exceeded 450 feet per minute.

Thomas J. Doran, called by defendant, testified that he was in charge of the elevators in the building at the time of the accident, and before; that when he heard of the accident he went to the ninth floor and found the car stopped there with the brakes set; that after releasing the brakes he operated and inspected the car and could find nothing wrong with it; that he could not account for the falling of the car except through the careless manipulation of the controlling device by the operator; that if certain functions of the apparatus or mechanism should not be working just right, it could cause the car to drop; that the brakes and things not functioning right or dirt getting into the carbons or contacts, or something like that, would cause it; that he inspected the elevator daily; that he inspected it on the morning of the accident, and found it working all right and in good condition.

Adam Herman, called by defendant, testified that he was in the employ of defendant, and was on the ninth floor of the building when the car fell; that before the car stopped he heard a crash and then a real hard sudden click, and then the car came to a stop.

Other witnesses testified for defendant that they each had operated the elevator on the day of the accident, and did not notice anything unusual or wrong about its operation.

The court, at the instance of the plaintiff, gave to the jury instructions Nos. 1 and 2, authorizing a verdict for plaintiff upon presumptive negligence arising under the res ipsa loquitur rule. Defendant complains of these instructions here on the ground that the evidence did not warrant the submission of the case under that rule. A like complaint was urged against a like instruction, and ruled against defendant, in Stroud v. Booth Cold Storage Co. (Mo. App.) 285 S. W. 165, 166. In that case, which is almost identical on its facts with the present case, the court said:

"The evidence discloses that the elevator started in an unexpected, unusual, and extraordinary manner, without any apparent reason, and without any fault on plaintiff's part, and, even though this be a master and servant case, we think plaintiff made a prima facie case under the facts we have above set out entitling him to invoke the rule of res ipsa loquitur. The jury would have a right to infer that defendant was negligent in some respect, and plaintiff would not be required to prove any particular kind of negligence. If plaintiff makes a prima facie case, and quits at that, then it is up to the defendant to relieve itself of liability, and, if negligence is once shown, or facts from which it may be inferred or presumed, then plaintiff is not required to go further and show that it was some particular kind or character of negligence which caused the injury. It is defendant's duty to show that it was free from negligence."

The opinion in the Stroud Case was unsuccessfully attacked in the Supreme Court by petition for writ of certiorari, as being in conflict with controlling decisions of that court.

Defendant insists that since the defendant produced evidence showing that the elevator machinery was in good condition, and that defendant was free from negligence, plaintiff was not entitled to have the cause submitted to the jury under the res ipsa loquitur rule. There is no support for this insistence either in principle or authority. The presumption of negligence arising under the res ipsa loquitur rule is not a mere rule of procedure. The unusual occurrence from which such presumption arises is evidence of negligence. Such presumption is not put to flight by testimony for defendant showing freedom from negligence on its part. Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S. W. 777; Murphy v. Tumbrink (Mo. App.) 25 S. W.(2d) 133.

Defendant insists that the res ipsa loquitur rule is not applicable because the plaintiff testified relative to the unusual behavior of the car before it fell, thus showing that she knew of the defective condition of the elevator mechanism which caused it to fall, so that it cannot be said that the facts concerning the cause of the fall of the car were peculiarly within the knowledge...