Beitling v. S.S. Kresge Co.
Decision Date | 07 March 1938 |
Citation | 116 S.W.2d 522,232 Mo.App. 1195 |
Parties | S. P. BEITLING AND LIBERTY MUTUAL INS. CO., RESPONDENTS, v. S. S. KRESGE COMPANY, APPELLANT |
Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Brown Harris Judge.
Judgment reversed and cause remanded.
Mosman Rogers, Bell & Buzard, Joe Levin, Harold Waxman and Chas. N Sadler for respondents.
Henry L. Jost and Roger C. Slaughter for appellant.
Action to recover damages for personal injuries suffered by plaintiff, Beitling, through the alleged negligence of the defendants.
The trial was to a jury. The plaintiffs had a verdict and judgment in the sum of $ 5000. The defendants have appealed.
The Liberty Mutual Insurance Company was a plaintiff upon the theory that it was the insurance carrier for Beitling's employer, had paid compensation to its co-plaintiff and was, therefore, entitled to be a plaintiff for the purpose of protecting its rights as such insurer. Nothing more need be said concerning the plaintiff company.
The defendant at the close of the evidence separately asked the court for a separately directed verdict in their favor. The requests were refused and error is assigned to each ruling.
In determining whether or not the case should have been submitted to the jury the evidence favorable to plaintiffs must be considered as true.
The plaintiff, Beitling, testified that at the direction of his employer he went to the Kresge Company store on October 6, 1936, for the purpose of connecting a paper baler on the fifth floor with a switch in the basement. On that occasion he and his helper Wilson, after taking their tools and materials on the freight elevator to the fifth floor, concluded that in doing the work it was necessary to extend the wires from the bailer down the shaft to the switch. He then went to the second floor, told Funkhouser, the acting manager of the Kresge Company store, the manner in which he had concluded to do the work, and Funkhouser told him to see the elevator operator or the house electrician; and that nothing more was said by Funkhouser. On the next day he returned to the store, went to the fifth floor on a passenger elevator and there met Hicklin who was operating the freight elevator; asked Hicklin for the use of the elevator, to which the latter replied that he could not do that. Hicklin, on the request of Beitling, opened and left open the door of the shaft for the purpose of allowing the latter to work "inside the doorway." Before the elevator left the fifth floor Beitling asked Hicklin if he would notify him before moving the elevator. The reply was, yes. The elevator was then moved to the first floor and stopped. Beatling, in undertaking his task, sat on the floor in the door of the elevator shaft facing south and placed his left foot on a steel girder extending east and west across the shaft. The girder was 8 to 12 inches lower than the floor. While in that position he was looking directly at the elevator. After working about five minutes he saw the elevator start upward. He then threw himself backwards in effort to get out of the way but did not succeed, and the balance weight of the elevator struck and injured his left foot. No signal or warning was given that the elevator would be moved. Beitling further testified he did not see the balance weight nor the groove in which it traveled; that while he knew elevators had balance weights he had never noticed any elevator with a balance weight on the side of the shaft. In his cross examination he testified that he had been engaged in the same class of work for about fifteen years.
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