Boesel v. Wells Fargo & Co.

Citation260 Mo. 463,169 S.W. 110
Decision Date02 July 1914
Docket NumberNo. 16152.,16152.
CourtUnited States State Supreme Court of Missouri
PartiesBOESEL v. WELLS FARGO & CO.

Plaintiff, a girl 14 years, 8½ months old, testified that she was employed by defendant's foreman to answer the telephone in defendant's express barn and notify him when wanted, using a freight elevator to do so; that, being required to find the foreman, she started the elevator, partially sitting on a guard bar with one leg over the bar; that she knew there was a space between the elevator floor and the edge of the second floor of the building; and that she did not remove her leg from the bar because it looked as though the space would be wide enough for her leg to go through without hitting or touching the floor. She was mistaken in this, and her leg was caught and injured. Held, that, notwithstanding plaintiff's youth, she appreciated the condition, and deliberately took the chance that the space was sufficiently large for her leg to pass through, and was therefore negligent as a matter of law.

4. MASTER AND SERVANT (§ 96)—INJURIES TO SERVANT—CHILDREN — CAUSAL CONNECTION BETWEEN EMPLOYMENT AND INJURY— "EMPLOYED TO OPERATE ELEVATOR."

Where plaintiff, a girl 14 years, 8½ months old, was employed temporarily to answer the telephone in an express barn and was injured while operating a freight elevator which she was permitted to use to communicate with the foreman, she was not employed to operate the elevator within Rev. St. 1909, § 1723, providing that no child under the age of 16 shall be employed to operate or assist in operating an elevator; and there was no causal connection between her employment and the use of the elevator at the time of her injury, so as to entitle her to enforce an alleged civil liability for her injuries, based on defendant's alleged violation of the statute in employing her.

Brown, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Edith E. Boesel, an infant, by Adam Boesel, her next friend, against Wells Fargo & Co. Judgment for defendant, and plaintiff appeals. Affirmed.

This case coming into banc from Division 2, we adopt with some minor emendations, the statement thereof made by ROY, C., who wrote the opinion in Division. It runs thus:

Suit for damages for personal injuries. Verdict and judgment for defendant, from which plaintiff appeals.

The defendant had its barn at the northwest corner of Johnson and Spruce streets in St. Louis. It fronts south on Spruce. It is 75 feet front by 175 feet deep. The office is on the first floor in the southeast corner. That floor is used for vehicles. At the north end of the building is a freight elevator about 13 feet by 9. It is operated by wire cables. Across the south opening to the elevator is a wooden removable bar about 3 feet high. Near the elevator begins a chute by which horses are taken to and from the stalls on the second floor. Hay and other feed is kept on the third floor. Near the foot of the chute is an extension bell from the telephone, which rings whenever there is a call on the telephone. As the elevator passes through the second floor there is a space of about two inches between the edge of the elevator and the side of the opening in the floor. John Hodgson was the foreman in charge of the barn.

The plaintiff lived with her parents in the property adjoining the barn on the west. The plaintiff was injured on August 19, 1909, and was 15 years old in December following. The injury occurred between 5 and 6 o'clock in the afternoon. Plaintiff testified as to what occurred between her and Hodgson, and as to how the injury occurred, as follows: "I was called into the building by John Hodgson; he was the stable boss; bossed the men and worked some himself. He was working for the Wells Fargo Express Company. Q. What did he say to you? A. He told me if I would answer the telephone he would pay me for it. Q. Now, tell what he said and what you said on this occasion? A. He called me into the office in the stable and asked me if I would answer the telephone; I told him, yes, and asked him how much he would give me; he said he would pay me to-night. He said he was going up to the third floor to get some sacks to clean the chute out with, and told me if a call came in to use the elevator and not to go up the chute, because he was afraid the horses would kick me, and then a call came for him, and I went and used the elevator. When a call came for him I got on the elevator. That was after he told me he was going to the third floor. When I got on the elevator, I pulled the wire that made the elevator go up; I went pretty near to the third floor. Then I was called down and I came down to the bar. My little brother called me down, and when I got down I stopped the elevator there. When I got down I put my leg over the bar. That bar was about three feet above the floor. My brother was in the chute at the time he called, but before I got down he went out of the chute and went on the second floor. I did not get off the elevator at all. Then I started to the second floor to get John Hodgson. As I went up my leg got caught between the elevator and the second floor and was crushed. The elevator does not fit close against the second floor. There is a space between them; I couldn't just exactly tell how wide it was. It looked as though it would be wide enough for my leg to go through without hitting or touching the floor at all. The elevator got past the second floor, and my little brother stepped in after I got my leg back on the elevator. My knee was dragged between the elevator and the second floor. My mother ran over and helped me out of the building. My little brother took me back to the first floor on the elevator. * * * Q. Now, state whether or not you were ever paid for the afternoon for answering the telephone at the time you were hurt. A. Yes, sir; John Hodgson paid me a quarter. I had answered the telephone before the 19th of August. I answered it before when asked to by John Hodgson. I was paid for answering it on those occasions for about three months. I did not answer it steadily every day. Just whenever I was called in there. I did not know how to operate the elevator. John Hodgson told me how, not very long after he had told me to answer the telephone."

On cross-examination the plaintiff testified as follows: "The movement of the elevator was regulated solely and entirely by these wires to the best of my knowledge. They were the only wires I knew of. I operated it time and again by those two wires, and had seen other people operate it by them. I never saw anybody operate it in any other way. Those wires were not quite touching the wall. When Mr. Hodgson explained to me how to operate the elevator I tried to see if I could do it; I did it all right. I learned in a very short time how to operate it. From that time on to the time I was hurt, I operated the elevator by those wires at least 100 times. In operating the elevator at least 100 times, I never before this time sat down on the elevator; that was the first time. In operating the elevator before, I had passed the second floor and gone up toward the third floor at times. I knew there was a crack between the south edge of the elevator and the second floor. I had seen it often as I went up by it. It was light at the time I was operating it. * * * I heard a call way down at the south end of the building; then I got on the elevator which was way up in the north end of the building, and pulled the wire and started it; I was standing up then. * * * I went up to the second floor and got almost to the third floor. I didn't see Mr. Hodgson on the third floor. There are horses and stalls all through on the second floor. They are on the side of the elevator. Closed ones are higher than me, and those open are not. Those on the side I don't think are higher than me. I didn't go up to the third floor so I could see over the stalls. I thought he was on the third floor; he told me before he was going up to the third floor to get the sacks, and I started up to the third floor. He went up to the third floor on the elevator. When I went up there to call him I found he was down on the ground. I didn't know where he was. I never did find out. My little brother called me to come down, and I went through the space again between the second floor and the elevator. * * * My little brother was standing right by the elevator when he called me and told me that Hodgson had gone up to the second floor. I don't know how long it took me to find him when I started upstairs, or how long it would take to run the elevator from the ground floor almost to the third floor. When I found that Mr. Hodgson had gone up the chute to the second floor I pulled the wire again with my leg over the bar. I knew that if I pulled one wire that it would send the elevator up, and if I pulled the other wire it would send it down. * * * I was sitting on the elevator with my leg over the bar when I started up, and the side of my leg rubbed the bar. When I got up to the second floor I stepped on the elevator, and that is the first time in over 100 times that I operated the elevator that I had ever gone up with my leg over it. When I got up to the second floor the outside of my left...

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