Bartlett v. Pontiac Realty Co.

• Decision Date: 15 September 1930
• Citation: 31 S.W.2d 279,224 Mo.App. 1234
• Parties: KATHERINE BARTLETT, RESPONDENT, v. PONTIAC REALTY COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

31 S.W.2d 279

224 Mo.App. 1234

KATHERINE BARTLETT, RESPONDENT, v. PONTIAC REALTY COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

September 15, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. H. A Hamilton, Judge.

AFFIRMED.

Judgment affirmed.

Buder & Buder and E. E. Schowengerdt for appellant.

(1) The defendant exercised ordinary care to furnish plaintiff a suitable and reasonably safe appliance and also exercised the requisite care to maintain the same in suitable and safe condition. Under such circumstances plaintiff should not be permitted to recover. Klebe v. Distilling Co., 207 Mo. 486; Removich v. Const. Co., 264 Mo. 43; Sabol v. Cooperage Co., 313 Mo. 527; Spindler v American Express Co., 232 S.W. 690. (2) An employer is not an insurer of the safety of his employees, or of the safety of the machinery or appliances furnished to his employees, but is only liable for injuries which are the direct and proximate result of his failure to use ordinary care to furnish a place which is reasonably safe for his employees, to do their work, or to use ordinary care to furnish reasonably safe appliances, or to use ordinary care to maintain them in suitable and safe condition. Pronnecke v. Westliche Post Pub. Co., 291 S.W. 139; Removich v. Const. Co., 264 Mo. 43; Blanton v Dold, 109 Mo. 64; Covey v. The Hannibal & St. Joseph Ry. Co., 86 Mo. 635; Sabol v. Cooperage Co., 313 Mo. 527; Compton v. Louis Rich Const. Co., 287 S.W. 474; Van Bibber v. Swift & Co., 286 Mo. 317; Spindler v. American Express Co., 232 S.W. 690; Yarbrough v. Hammond Packing Co., 231 S.W. 72; Russell v. St. Louis & S. F. Ry. Co., 245 S.W. 590; Ryan v. Lea, 249 S.W. 685; Wendall v. Railway Co., 100 Mo.App. 556. (3) The plaintiff has the burden of proving by the preponderance of the evidence that the master was negligent. He must show affirmatively all elements of right to recover. It is to be presumed, in the absence of evidence to the contrary, that the duties required of the master have been properly performed and the plaintiff must produce some evidence which tends to destroy this presumption. The mere showing by plaintiff that an accident happened, or that the plaintiff was injured, is not of itself sufficient to overcome this presumption in favor of defendant, nor does such showing raise a presumption of negligence on the part of the master. Sabol v. Cooperage Co., 313 Mo. 527; Removich v. Const. Co., 264 Mo. 43; Copeland v. Wabash Ry. Co., 175 Mo. 674; Pronnecke v. Westliche Post Pub. Co., 291 S.W. 141; Riger v. Fleming Lbr. Co., 210 Mo.App. 322; State ex rel. v. Cox, 298 Mo. 427; Myers v Strauss, 264 S.W. 801; Goode v. Central C. & C Co., 167 Mo.App. 169; Compton v. Louis Rich Const. Co., 287 S.W. 480. (4) The res ipsa loquitur doctrine is not favored by the courts. Many courts limit its application to carriers of passengers and never extend its application to cases of master and servant. In those jurisdictions (including Missouri) which do in some instances extend the doctrine to cases of master and servant, the courts always limit its operation to the necessities of each particular case and such courts state positively that the doctrine should be applied only with great, if not extreme, caution to master and servant cases. Klebe v. Distilling Co., 207 Mo. 493; Removich v. Construction Co., 264 Mo. 46-50; Sabol v. Cooperage Company, 313 Mo. 540. (5) The doctrine of res ipsa loquitur is seldom applied in Missouri in cases between master and servant, and it cannot be invoked unless the evidence is such as to exclude all defensive inferences, including contributory negligence, negligence of a fellow servant, latent defects, defects which the defendant had no reasonable opportunity to discover, lack of causal connection and the assumption of risk. Under the evidence in the case at bar the doctrine should not have been applied, because the accident might have occurred from causes for which defendant was in nowise responsible and because it excluded the above-mentioned defenses of this defendant. Klebe v. Distilling Co., 207 Mo. 480; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 49, and cases therein cited; Courtney v. Gainsborough Studios, 174 N.Y.S. 855; McGrath v. St. L. Transit, 197 Mo. 97. (6) Under the evidence in this case the plaintiff should not have been permitted to recover on the res ipsa loquitur doctrine, and the demurrer offered at the close of all the evidence should have been sustained. Glebe v. Distilling Co., 207 Mo. 480; Removich v. Const. Co., 264 Mo. 43; Wilt v. McCallum, 214 Mo.App. 320; Pronnecke v. West P. P. Co., 291 S.W. 139; Beebe v. Transit Co., 206 Mo. 419; Nelson v. C. Heinz Stove Co., 8 S.W.2d 918; Courtney v. Gainsborough Studios, 174 N.Y.S. 855; Kalman v. Pieper, 149 N.W. 203; Sheehan v. Boston Co., 220 Mass. 210, 107 N.E. 923. (7) The evidence in this case disclosed that the elevator machinery was of the latest and best type which could be procured and that it was practically new; that the engineer in charge of the elevator in question had carefully inspected the same every day prior to and on the day of the accident and immediately after the accident and had found the same to be in perfect condition; that the official inspector of the city of St. Louis had made a thorough and complete examination of the elevator only four days prior to the accident and had found the same to be in good and safe condition and had approved the safety thereof and issued his certificate thereon; that it was a physical impossibility for the elevator to start up without the control lever being moved, and there was no other evidence tending to establish any negligence on the part of the defendant. Under such circumstances the cause should not have been submitted to the jury under the res ipsa loquitur doctrine and the demurrer to the evidence should have been sustained. Klebe v. Distilling Co., 207 Mo. 480; Courtney v. Gainsborough Studios, 174 N.Y.S. 855; Kalman v. Pieper, 149 N.W. 203; Lillis v. Beaver Dam Mills, 124 N.W. 1011. (8) As between master and servant, where the servant or his associates have knowledge or opportunity to know of a defect, or of a dangerous condition existing in the machinery which caused his injury, the rule of res ipsa loquitur does not apply, but the master's negligence must be proved and if not proved the plaintiff must be nonsuited. In this case the plaintiff testified that she was an experienced operator; that she noticed the elevator was not operating properly and was acting unusual; that she knew there was something wrong with the elevator and that it was out of order, but she continued to operate the same, even though she knew of its defective and dangerous condition. Under these circumstances it cannot be said that the defective and dangerous condition of the elevator was peculiarly within the knowledge of the master. Under these facts the res ipsa loquitur doctrine is not applicable in a master and servant case, and the defendant's demurrer to the evidence should have been sustained. Klebe v. Distilling Co., 207 Mo. 480; Sabol v. Cooperage Co., 313 Mo. 527; Haynie v. Packing Co., 126 Mo.App. 88; Glasscock v. D. G. Co., 106 Mo.App. 656; Removich v. Constr. Co., 264 Mo. 43. (9) The rule of res ipsa loquitur, as establishing negligence in a master and servant case, is never applied unless the facts concerning the cause of the accident, or the condition of the machinery which caused the accident, are peculiarly within the knowledge and control of the master and not equally accessible to the plaintiff. It does not apply if the plaintiff is in a position to have or obtain the evidence to explain the condition of the machinery or the cause of the accident. Where the evidence is available to plaintiff through her fellow servants, or through other witnesses, the courts have held that the doctrine should not be applied in a master and servant case. Sabol v. Cooperage Co., 313 Mo. 527; Klebe v. Distilling Co., 207 Mo. 480; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43; Russell v. Railway Co., 245 S.W. 590; Byers v. Essex Investment Co., 281 Mo. 375; Dougherty v. Mining Co., 207 S.W. 254; Reicks v. Brewing Co., 227 S.W. 631; Kuether v. Light & Power Co., 276 S.W. 108; Porter v. Ry. Co., 277 S.W. 913; Stolle v. Brewing Co., 271 S.W. 497; Hamilton v. Southern Ry., 123 Mo.App. 619. (10) For the res ipsa loquitur doctrine to apply it must appear that the instrumentality that caused the injury was within the exclusive control and operated by defendant. The evidence in this case disclosed that the defendant was not in the exclusive possession or control of the elevator, but that the operating and controlling device of said elevator (the improper manipulation of which would have caused this accident) was in the exclusive possession and control of the plaintiff, and that an improper manipulation of said control device would have caused the elevator to overspeed and automatically stop as it did in the present case. Therefore, plaintiff was not entitled to go to the jury on the res ipsa loquitur doctrine and defendant's demurrer to the evidence should have been sustained. Klebe v. Distilling Co., 207 Mo. 480; Mayne v. Ry. Co., 229 S.W. 390; Orb v. Woodward & T. Co., 189 S.W. 997; Thompson v. Rd., 243 Mo. 336; Gibbs v. Rd., 148 Mo.App. 475. (11) Merely the showing of an overspeeding and automatic stopping of an elevator, as shown by plaintiff in the present case, an occurrence which happens with elevators which are in perfect working condition and which happens without the intervention of any negligence, is not such an occurrence as gives rise to res ipsa loquitur doctrine, because such an occurrence, in the ordinary course of things, does not happen as the result of negligence of the master. The...