O'Brien v. Western Steel Co.

• Decision Date: 10 March 1890
• Citation: 100 Mo. 182,13 S.W. 402
• Court: Missouri Supreme Court
• Parties: O'BRIEN v. WESTERN STEEL CO.

13 S.W. 402

100 Mo. 182

O'BRIEN v. WESTERN STEEL CO.

Supreme Court of Missouri.

March 10, 1890.

MASTER AND SERVANT — PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE.

In an action for damages for the death of plaintiff's son, caused by defendant's defective elevator, it appeared that the elevator was managed by an operator in the engine-room; that deceased got on to descend from the top story of the building, and, as it approached the first floor, leaned forward to step off, when the operator suddenly reversed the motion, sending the elevator up again, thus crushing deceased between the elevator and the second floor. It further appeared that from his position in the engine-room the operator could not see the elevator; that the duties of deceased were in the factory yard, and did not require him to go upon the elevator; that at the time of the accident he had left his work, and gone up to the top story of the factory, to get a drink of ice water; that he had done this several times before, and knew of the peculiar construction and management of the elevator; that there were stairways for the use of employes, and the elevators were used only for freight. Held, that an instruction directing a verdict for the defendant was not erroneous.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

This action was brought by Margaret O'Brien against the Western Steel Company for damages for the death of her son William O'Brien, an employe of defendant. There was judgment for defendant, and plaintiff appealed.

T. B. Childress, for appellant. Cunningham & Eliot, for respondent.

BRACE, J.

This is an action to recover damages by a mother for the death of her minor son, William O'Brien, an employe of the defendant, who was killed in an elevator on defendant's premises. At the close of the plaintiff's testimony the court gave an instruction that the plaintiff should not recover. She thereupon took a nonsuit, with leave. Her motion to set aside the nonsuit having been overruled, and judgment rendered for the defendant, she appeals. Plaintiff's cause of action is made to appear by the following averments contained in her amended petition: "That on the 5th day of August, 1886, about 11 o'clock in the night-time, the said William O'Brien, being in the employ of the defendant, as aforesaid, and being on said elevator, descending from the fourth or top floor of said building to the first floor thereof, and the said elevator having descended nearly to the first or ground floor of said building, and having stopped for an instant, and the said William O'Brien having stepped to the front of said elevator, to a position from which he could step therefrom to the ground or first floor as soon as said elevator should reach said first floor, and the person managing, operating, and running said elevator not being able to see said William O'Brien on said elevator from where he was compelled to stand in order to manage and operate said elevator, owing to the negligent and improper construction thereof, and not knowing that said William O'Brien was standing on said elevator, near the front thereof, ready to step therefrom when it reached the first floor of said building, suddenly reversed said elevator, and started it upwards, and that said William O'Brien was then and there and thereby caught between the platform or floor of said elevator and the arch of the opening or entrance to said elevator, and was then and there so crushed and injured between the platform or floor of said elevator and the said arch that he died almost instantly therefrom. That the death of said William O'Brien was caused by the fault and negligence of the defendant in not having said elevator so constructed and arranged that the person employed to manage, operate, and run said elevator, whilst managing, operating, and running the same, could see onto the said elevator from the point where he had to stand when operating, managing, and running the same, and could see and know when any person was on said elevator when it reached the first or ground floor of said building and was near to the front of said elevator floor; all of which said defendant might and would have had, by the use of reasonable and ordinary care and diligence."

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