Bennett v. Hood

• Decision Date: 27 June 1927
• Docket Number: No. 16014.,16014.
• Citation: 296 S.W. 1028
• Parties: BENNETT v. HOOD.
• Court: Missouri Court of Appeals

296 S.W. 1028

BENNETT v. HOOD.

No. 16014.

Kansas City Court of Appeals. Missouri.

June 27, 1927.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Albert F. Bennett against .S. W. Hood and another. Judgment for plaintiff against defendant named, and defendant named appeals. Affirmed.

McCune, Caldwell & Downing, of Kansas City, for appellant.

Mosman, Rogers & Buzard, of Kansas City, for respondent.

ARNOLD, J.

By this action plaintiff seeks damages for personal injury. The suit was instituted against J. W. Hood and James Flanagan, but at the close of the evidence the court directed a verdict for defendant Flanagan, but refused an instruction in the nature of a demurrer as to defendant Hood.

The record discloses that J. W. Hood is a building contractor, and in such capacity contracted with defendant Flanagan to make some alterations in a 3-story building at 1915 Main street in Kansas City, Mo. It appears that among such alterations was to be constructed a small elevator and shaft running from the basement to the third floor; that in the construction of this elevator, plaintiff, who was a journeyman carpenter, was employed together with one Frank G. Ikenbery, and the two constructed the said elevator and shaft. The said elevator was what is commonly known as a "hand elevator," which is to say, an elevator operated by hand without the use of any other power. By way of explaining its operation counsel for defendant suggest it might appropriately be called a "dumb waiter." Its construction consisted of a shaft extending from the roof to the depth of the building, inclosed by lumber on three sides and open on the fourth. Each side was 2½ to 3 feet wide, and its total depth was 36 feet. The frame of this shaft was of 2×4 timbers, end to end, at each corner thereof. Inside the shaft was the elevator proper, which was a box with 2×4 upright pieces of timber 7 feet in height at each corner thereof, closed and boarded at the bottom and on three sides. The inside of said box was 20 to 22 inches square, the testimony being somewhat indefinite on this point. During the process of construction this box was assembled and installed inside the shaft above mentioned. A rope was fastened to the top of said box and ran in a groove over a shive wheel located on or near the roof of the building. To the other end of the rope was fastened counter weights, which hung and moved up and down between the box and the shaft inversely as the box moved up and down. These weights were approximately of the same weight as the box. The shive wheel was on an axle, on which was another wheel much smaller in diameter, over which operated a loop or endless guide rope, running the full depth of the elevator shaft between the open side of the box and the floors. The rope thus placed extended the full length of the shaft, and was within reach of a person standing on any floor of the building.

The operation of the elevator was as follows: By pulling on the guide rope the shive wheel was caused to turn, and the elevator box was thus caused to be raised or lowered as desired. When in order the elevator box moved freely within the confines of the shaft upon manipulation of the guide rope by a person standing on any floor of the building. The horizontal position of the elevator box was fixed by a slot in each of the two or three closed sides which rode in tracks of 2×4 timbers on the interior of the shaft inclosure.

It appears there was a foot board 1×8 or 1×10 inches in width fastened upright across the bottom of the opening of the shaft at each floor to prevent objects from rolling into the elevator shaft from the floor and as a protection to one handling boxes or other articles against his foot slipping into the shaft. The said elevator was not a passenger elevator, but was used by the tenants of the building for hoisting and lowering small, light articles. The operator stood on a floor of the building, and not inside the box, the size of which was limited, as above stated, to 20×20 or 22×22 inches.

The record shows that, a week or more after the work was done at 1915 Main street, plaintiff and Ikenbery (the latter being the alleged vice principal of defendant) were employed on a job of defendant at 510 Main street, engaged in remodeling a store front. On May 6, 1924, or the day before, defendant ordered plaintiff to go to Kansas City, Kan., to put in some windows, which he did, and at about 4 p. m., as directed, he returned to finish the job in hand at 510 Main street in Kansas City, Mo. When he arrived there, he had a conversation with Ikenbery, and as to that he testified Ikenbery told him to "put your tools back (into his car); the boss said for us to go down to 1915 Main and adjust the elevator." By "the boss" was meant defendant Hood. There is some conflict as to just what was said in this conversation, but plaintiff further stated: "Ikenbery told me that Mr. Hood said for him to take me and go to 1915 Main street and adjust that elevator."

When plaintiff and Ikenbery reached 1915 Main street, they proceeded to adjust the elevator. They put on guides for the rope which operated it, completing this work about 5 p. m. and just after they got through with this work the elevator stuck at the third floor, and could not be moved. Both Ikenbery and plaintiff were on the third floor at the time, and Ikenbery directed plaintiff to remain there, and said he would go down to the first floor and pull the rope. On reaching the first floor, he called to plaintiff, and told him to shove the elevator, which he did without results. Plaintiff testified that Ikenbery then said, "Hell, shove, and I will hold the rope," and that in response to this command, plaintiff again shoved the elevator. It slipped loose, Ikenbery did not hold the rope, and the elevator went down; that plaintiff became overbalanced in some way, fell into the elevator, and went down with it. Plaintiff testified that, in order to "shove" the elevator, as he was directed to do by Ikenbery, it was necessary for him to place one foot inside the elevator box and push or kick it down; that, when he did so, he fell into the elevator box, and as it fell from the third floor to the basement it carried plaintiff with it. The impact seriously injured plaintiff.

Plaintiff testified that he relied on Ikenbery's statement that he would hold the rope, and, in his opinion, if Ikenbery had done that, the elevator would have stopped.

The petition alleges that Ikenbery was "the boss, foreman, and vice principal of defendant," and had charge and supervision of plaintiff in his employment; that in such capacity Ikenbery negligently and carelessly ordered and directed plaintiff to kick, shove, and push said elevator. Further, the petition charges negligence, in that defendant carelessly and negligently failed to exercise due care in furnishing plaintiff a reasonably safe place in which to work, in that plaintiff was ordered by defendant to kick, push, and shove said elevator without first having guarded or...