Birdsong v. Jones

• Decision Date: 26 May 1930
• Docket Number: No. 16925.,16925.
• Citation: 30 S.W.2d 1094
• Parties: LEONARD BIRDSONG, BY NEXT FRIEND, APPELLANT, v. HERBERT JONES, ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

30 S.W.2d 1094

LEONARD BIRDSONG, BY NEXT FRIEND, APPELLANT, v. HERBERT JONES, ET AL., RESPONDENTS.

No. 16925.

Kansas City Court of Appeals. Missouri.

May 26, 1930.

Appeal from Circuit Court of Jackson County. — Hon. Ben Terte, Judge.

AFFIRMED.

Walsh & Parker for appellant.

Watson, Gage & Ess and Mosman, Rogers & Buzard for respondents.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5000. The court sustained defendants' motion for a new trial without assigning any reason therefor. Plaintiff has appealed. This is the second appeal in the case. [See Birdsong v. Jones et al., 8 S.W. (2d) 98.]

This action is brought by plaintiff through his next friend against the defendants who are the present trustees under the last will and testament of William R. Nelson, deceased. The suit is for damages for personal injuries which plaintiff received while in the employ of Laura Nelson Kirkwood, who was, at the time of the receipt of said injuries, trustee under the last will and testament of said Nelson, and as such was operating and conducting the affairs of a newspaper known as the Kansas City Star.

The facts show that plaintiff went to work for Laura Nelson Kirkwood, the trustee aforesaid, at the Kansas City Star building in Kansas City about the first day of May, 1923; that he was engaged in the work of carrying newspapers from the presses to the elevator and general "clean-up" boy in the room in which the newspaper printing presses were situated. There were nine presses in the room; five or six of these were situated along the south wall of the room and the others along the north side. Immediately north of each press on the south side of the room was a hydraulic hoist or elevator. Each of these elevators was of the plunger type, being raised and lowered by a stem attached to its under middle. These elevators were 55 or 56 1-2 inches wide and 76 inches in length. The width of the elevators was north and south, the length east and west. They were freight elevators and were used primarily as such for lifting large rolls of paper weighing about 1500 pounds each and about six feet in length. These rolls of paper were transported from the sub-basement to the level of the basement floor proper to be used in the presses located there.

Plaintiff was injured while operating elevator number four by getting his foot caught between the elevator and the floor of the press room. The floor of this room where the elevator came through was about three feet deep. The opening started with the top of the floor and ran downward 18 inches in a perpendicular direction and then flared out on all four sides. There was a clearance of from two to three inches between the sides of the elevator and the 18-inch thickness of the surrounding floor. The elevator consisted of merely a platform without any sides, gates or guards, except that it had a guard on the west side about 2 1-2 or 3 feet long and about 3 or 4 inches high. The elevator was operated by two cables, running through guides, referred to in the evidence as controls. These controls were on the west end of the elevator about 2 or 3 feet inward toward the center, being nearer the north end than the south. They extended the length of the elevator shaft and ran through guides attached to the sides of the elevator.

The evidence shows that plaintiff was 16 years and one month of age at the time he was injured on May 14, 1923; that there were employed about the premises about 20 boys near the age of plaintiff, some younger, some older; that these boys, including plaintiff, as well as adult employees in the press room, would use the elevators in going to and from the basement when they were not being used to transport rolls of paper. Plaintiff testified that his working hours were from 10 P.M. until 4 A.M. and that he had been using the elevators 20 or 25 times every night. At the time he was injured plaintiff had gone to the basement to procure a broom and was returning with the broom, which he had laid upon the elevator, when he was injured. Another boy, also a minor, by the name of Galvin was riding upon the elevator which plaintiff was operating.

Plaintiff's evidence is conflicting as to which end of the elevator he was stationed. It fairly appears from his testimony that he was standing at the controls but whether on the east or west end of the elevator he was not certain but thought that he was standing on the northeast end facing east. However, it is undisputed that the outer edge of his right foot was injured and the physical facts would indicate that he was standing facing toward the west, as it would appear that his foot was caught between the north end of the elevator and the floor. However, this conflict in the testimony will be discussed later.

Plaintiff testified that he did not notice the position of his foot but thought that it was safely upon the elevator platform; that he could have seen where his foot was stationed had he looked, but at the time his foot was caught his attention was directed to the operation of the elevator, that is the guides and the floor where he was about to stop the elevator. He admitted that he had been talking with Galvin but stated that when his foot caught he was not talking and that his head was not turned away from the cables; that at this time his head and shoulders were about at the upper part of the floor of the press room and "I was trying to stop the elevator." We take this to mean that he had his attention directed to the stopping of the elevator when it should reach the proper place and that he was watching the floor and the controls. Apparently his foot caught at a point 18 inches below the top of the floor. It was not freed until the elevator passed the level of the floor when the elevator was stopped by Galvin. Plaintiff further testified:

"Your body would be up first, of course, and your head would be above the floor level, and you would have to look for the level of the floor so you could make it even, make an even stop. So you would have to watch the control, watch the cables and watch the landing at the same time.

.......

"I had my head turned this way, watching the cable and the floor at the same time when my foot was caught, and the only thing that I could say was that there wasn't any guard there and my foot was sticking over say about an inch and a half, and my foot was caught."

Plaintiff testified that no one warned him of the dangers attending the use of the elevator; that no official instructed him as to its operation but that some of the employees about the place showed him how to use it.

Galvin testified that he was riding on the elevator with plaintiff at the time the latter was hurt; that plaintiff was operating the elevator; that the witness was on the opposite side of the elevator from plaintiff; that the controls were on the west side of the elevator and that plaintiff was on the north end of it.

On behalf of plaintiff one Rafiner, a manufacturer and repairer of elevators, testified that he had seen elevators that were in the plant of the Kansas City Star in 1923 and was vaguely familiar with them; that there were no guard or guards of any kind on these elevators; that a collapsible gate could have been put on the elevator in question (a photograph of which was shown him) which would have allowed sufficient clearance for the rolls of paper without interfering with the primary purpose of the elevator in transporting such rolls from the sub-basement to the presses. He gave a complete explanation as to how this gate would function and described the manner in which it would have preyented one from allowing his foot to protrude over the side of the platform or elevator. He further testified that he had seen two or three of this type of elevator, which he described as the inverted type, with such guards upon them; that he had seen these since the year 1923; that he was familiar with this class of appliances but did not know whether this type of elevator was used in newspaper plants; that the inverted type of elevator was a common type; that the gates he described were not commonly found on them but that such gates were practical.

Defendants produced two expert witnesses upon the question of the practicability of guarding the elevator in question and both testified that it would have been impractical to guard it. One testified that he had never seen an elevator of this type equipped with gates or guards and that the guard described by the witness Rafiner was impractical. Neither of defendants' witnesses testified that it was within their experience that elevators of this type were at any time used as passenger elevators or that it was the custom to use them as such. However, one of them stated that he had no knowledge of such a use. They both testified that the elevator in question was of a standard type of elevator.

One of the assignments in the motion for a new trial was that the verdict was against the weight of the evidence. The court having failed to state its reasons for granting the new trial it may be assumed that it was upon the ground that the verdict was against the weight of the evidence. The rule is well established that the trial court may grant one new trial on the ground that the verdict is against the weight of the evidence and that when a motion for a new trial has been sustained under such circumstances the action of the trial court will not be disturbed by the appellate court if there is substantial evidence to justify a result contrary to the verdict, and in no case, will the granting of such a new trial be disturbed unless the evidence is such that no verdict in favor of the party to whom the new trial was granted could be allowed to stand. [Bernheimer v. Scott, 228 S.W. 523; Lindsay v. Shaner, 291 Mo. 297.]

Plaintiff insists that if the court granted the new trial on the ground that the verdict was against...