Becker v. Lincoln Real Estate & Building Co.

• Citation: 93 S.W. 291,118 Mo. App. 74
• Parties: BECKER v. LINCOLN REAL ESTATE & BUILDING CO.
• Decision Date: 10 April 1906
• Court: Court of Appeal of Missouri (US)

93 S.W. 291

118 Mo. App. 74

BECKER v. LINCOLN REAL ESTATE & BUILDING CO.

St. Louis Court of Appeals. Missouri.

April 10, 1906.

Rehearing Denied April 24, 1906.

1. APPEAL—OBJECTIONS NOT RAISED AT TRIAL.

Where defendant went to trial without objecting that the transcript of the record on a change of venue was not signed by the clerk of the court from which the change was taken, it could not raise such objection on appeal.

2. CARRIERS—ELEVATORS—INJURIES — PASSENGERS —NEGLIGENCE—EVIDENCE.

Where, in an action for injuries to an elevator passenger, plaintiff testified that the elevator

was motionless and even with the floor of the corridor of the building when she attempted to leave it immediately behind her companion, that the doors were then wide open for the exit of passengers, and that just as she stepped out, with her foot raised to step on the floor of the corridor, the elevator started and she felt herself hauled violently backward with the result that her foot and leg were crushed, such proof was sufficient to present the issue of defendant's negligence in prematurely starting the elevator.

3. SAME—CARE REQUIRED.

The owner of a passenger elevator is required to use the highest degree of care in everything calculated to insure the safety of passengers.

4. SAME—PROXIMATE CAUSE.

Where, in an action for injuries to an elevator passenger by the alleged sudden starting of the elevator before she had alighted, plaintiff's evidence warranted an inference that the movement of the elevator as plaintiff was about to leave it caused her to fall and thrust her foot between the floor of the car and the bottom of the adjacent elevator door, while defendant claimed that the catching of plaintiff's limb was due to the act of the elevator operator in pushing plaintiff backward after the elevator had started, the negligent act of the operator in prematurely starting the car was the proximate cause of the injury.

5. SAME—LENGTH OF STOP—INSTRUCTIONS.

Where an injury to a passenger of an elevator was alleged to have been caused by the premature starting of the car before plaintiff had time to alight, an instruction that it was the operator's duty to stop the elevator at the floor in question a sufficient length of time to enable any passenger desiring to alight, "in the exercise of ordinary care to do so," was erroneous; the operator being only bound to hold the car a reasonable time for passengers to "alight or indicate their intention to do so."

6. DAMAGES—MARRIED WOMEN—INJURIES — IMPAIRMENT OF EARNING CAPACITY.

Where, in an action for injuries to a married woman who had been abandoned by her husband, there was no proof that she had ever earned money by her separate labor or had performed labor of any kind, it was error to permit her to recover for an impairment of her physical ability to labor and earn money by her separate labor, though she was entitled to her separate earnings, as provided by Rev. St. 1899, § 4340.

Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.

Action by Lucille Becker against the Lincoln Real Estate & Building Company. From a judgment for plaintiff, defendant appeals. Reversed.

Seddon & Holland, for appellant. A. R. Taylor, for respondent.

GOODE, J.

This is a damage case for a serious personal injury sustained by plaintiff, she alleges, in consequence of the negligent operation of an elevator in charge of defendant's servant. The casualty happened in the city of St. Louis on April 10, 1900. Defendant owns a lofty building in St. Louis, and several elevators ply between the different stories. Plaintiff entered an elevator just prior to her injury, in company with an attorney to whose office she was going on business. The attorney notified the operator to let them off at the fourth floor. When that floor was reached, the elevator was stopped, the automatic gates opened, and the attorney, who stood just at the side of the door, stepped out and proceeded along the corridor toward his office. According to plaintiff's testimony, she was standing immediately behind the attorney and followed him closely as he left the elevator. She stated that, when she attempted to step into the corridor, the elevator was even with the floor and the doors were wide open, and that just as she stepped out she felt herself hauled back violently and her foot was caught, severely injuring her foot and limb. Some other witnesses swore plaintiff attempted to leave the elevator when the gates were about 18 inches apart and closing and the elevator was 3 feet above the floor; that is to say, after it had ascended from the fourth floor toward the fifth. There was testimony that, when plaintiff made this movement, the operator of the elevator, in order to stop her from rushing out of the elevator, which was in motion, threw his arm in front of her, causing her to fall backward. This case was in the Supreme Court on an appeal from a former judgment, and all the facts are related in the opinion then given (174 Mo. 246, 73 S. W. 581). Besides a general denial, a special defense of contributory negligence on the part of plaintiff was interposed. From a judgment in favor of plaintiff, defendant appealed to this court.

The action was originally instituted in the circuit court of the city of St. Louis, and the first trial and judgment were in that court. After the reversal of the case by the Supreme Court plaintiff applied for a change of venue, which was granted, and the cause sent to the circuit court of St. Louis county. A transcript of the record was transmitted in due time to the latter court by the clerk of the circuit court of the city of St. Louis. The transcript was in good form and was attested by the proper certificate, duly authenticated by the seal of the court awarding the change of venue; but the signature of the clerk of that court was omitted, doubtless by inadvertence. This omission is made the basis of a contention that the circuit court of St. Louis county was without jurisdiction to try the cause. No objection was made to the condition of the transcript in that court. If there had been, it is reasonable to presume the court would have had the clerk of the circuit court of the city of St. Louis sign the transcript. Defendant went to trial without raising in any manner the point it now presses and which we think is wholly untenable on the appeal. Apposite authorities are Smith v. Monks, 55 Mo. 106; Henderson v. Henderson 55 Mo. 534; Levin v. Railroad, 140 Mo. 624, 41 S. W. 968.

Defendant asserts there was no evidence to sustain the allegation of negligence contained in plaintiff's petition, and therefore the jury should have been directed to return a verdict against her. The negligence charged was that while the elevator was standing at the fourth floor of the building to enable passengers to alight, and while plaintiff was proceeding to alight, but before she had time or an opportunity to do so, defendant's servant in charge of the elevator "negligently caused and suffered said elevator to be started upward, whereby plaintiff was caused to be jerked and fall so that her left foot and ankle were caught and crushed between said elevator and the gates and side thereof." Plaintiff's own testimony would have to be ignored to say there was no evidence to sustain that allegation of negligence. She swore positively that the elevator was motionless and even with the floor of the corridor when she attempted to leave it immediately behind her attorney, that the doors were wide open for the exit of passengers, and just as she stepped out of the door, with her foot raised to put it down on the floor of the corridor, the elevator started and she felf herself hauled violently backward, with the result that her foot and leg were crushed. If the machine was motionless when plaintiff attempted to step out, and she swore it was, then beyond question her injury was due to negligently starting it too soon. It is true that in testifying plaintiff used the expression that she was "hauled" backward, instead of "jerked" backward, as charged in the petition; but the difference between the two words used in this connection is trifling. It was urged on the appeal in the Supreme Court that no negligence on the part of defendant was shown, but that court must have entertained a different opinion; for it reversed the case on plaintiff's appeal and...