Boesel v. Wells Fargo & Co.

• Decision Date: 14 July 1914
• Citation: 169 S.W. 110,260 Mo. 463
• Parties: EDITH E. BOESEL, an Infant, by ADAM BOESEL, her Next Friend, Appellant, v. WELLS FARGO & COMPANY
• Court: Missouri Supreme Court

169 S.W. 110

260 Mo. 463

EDITH E. BOESEL, an Infant, by ADAM BOESEL, her Next Friend, Appellant, v. WELLS FARGO & COMPANY

Supreme Court of Missouri

July 14, 1914

Appeal from St. Louis City Circuit Court. -- Hon. W. B. Homer Judge.

Affirmed.

W. E Knowles and Earl M. Pirkey for appellant.

(1) The violation of a statute forbidding the employment of a child is negligence per se. Brombey v. Laundry Co., 134 Iowa 45; Marino v. Lehmaier, 173 N.Y. 530; Strafford v. Iron & Steel Co., 238 Ill. 371; Car & Foundry Co. v. Dimentraut, 214 Ill. 509; Lore v Am. Mfg. Co., 160 Mo. 622. These cases also held that contributory negligence is no defense. (2) An instruction requiring the jury to find that defendant's negligence was the sole cause of the injury is erroneous. Wallach v. Transit Co., 123 Mo.App. 168; Newcomb v. Railroad, 169 Mo. 431; Harrison v. Light Co., 195 Mo. 623. Negligence of a parent cannot be imputed to a child suing in its own right. Berry v. Railroad, 214 Mo. 603; Neff v. Cameron, 213 Mo. 350. Minors are not expected to exercise the care of adults. Whether a minor exercises proper care is almost always a question for the jury. Obermeyer v. Chair Mfg. Co., 229 Mo. 106; Shortridge v. Scarritt Estate, 145 Mo.App. 295. Contributory negligence to be availed of must be pleaded in the answer. Hughes v. Railroad, 127 Mo. 453; Meily v. Railroad, 215 Mo. 588; White v. Railroad, 250 Mo. 476; Collett v. Kuhlman, 243 Mo. 591. Where contributory negligence is not pleaded defendant can avail himself of the defense only when plaintiff's evidence so clearly shows contributory negligence that the case must be taken from the jury. Stewart v. Railroad, 142 Mo.App. 324; State ex rel. v. Hallen, 146 S.W. 1176. Instructions undertaking to select certain portions of the evidence and commenting on the force and effect thereof are erroneous. Barr v. Kansas City, 105 Mo. 559; Connolly v. Railroad, 120 Mo.App. 652; Williams v. Stevens, 38 Mo.App. 164; State v. Mitchell, 229 Mo. 697. (3) The law does not require a litigant to voluntarily give his deposition. It cannot be taken where plaintiff must be present to make out his case. Bispham on Equity (6 Ed.), p. 682, sec. 561; Matthews v. Railroad, 142 Mo. 668; Ess v. Griffith, 139 Mo. 322; Tyson v. Sav. & Loan Assn., 156 Mo. 595; Ex parte Kreiger, 7 Mo.App. 374.

W. F. Evans and E. T. Miller for respondent.

(1) Plaintiffs' testimony itself does not show that she was an employee of defendant. The purpose of the statute, as shown by the title to the Act of 1907, was to "regulate the employment" of children in gainful occupations, and the term "employed" as used in the statute, must be given its plain and ordinary meaning. Railroad v. Wilson, 138 U.S. 505. Again, even upon plaintiff's testimony in support of her theory, she was not employed to "operate or assist in operating" the freight elevator. If she was employed, she was employed to answer the telephone, and her evidence cannot show a violation of this criminal statute by defendant. (2) Plaintiff's negligence was shown by plaintiff's own testimony, and the defense of contributory negligence was open to defendant. Allen v. Transit Co., 183 Mo. 424.

FARIS, J. Lamm, C. J., Graves, Bond and Walker, JJ., concur; Woodson, J., concurs in separate opinion; Brown, J., dissents.

OPINION

In Banc

FARIS J.

This case coming into Banc from Division Two, 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 northeast 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 thirteen feet by nine. It is operated by wire cables. Across the south opening to the elevator is a wooden removable bar about three 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 fifteen years old in December following. The injury occurred between five and six 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 one hundred times. In operating the elevator at least one hundred 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...