O'Brien v. Western Steel Co.

• Decision Date: 10 March 1890
• Citation: 13 S.W. 402,100 Mo. 182
• Parties: O'Brien, Appellant, v. Western Steel Company
• Court: Missouri Supreme Court

13 S.W. 402

100 Mo. 182

O'Brien, Appellant, v. Western Steel Company

Supreme Court of Missouri

March 10, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Affirmed.

T. B Childress for appellant.

(1) The trial court erred in instructing the jury that "under the evidence the plaintiff was not entitled to recover." Upon the theory upon which the suit was brought and tried the appellant was clearly entitled to recover. Corby v. Hill, 4 C. B. (N. S.) Rep. top p. 554, side pp. 556-563; Sweeny v. Railroad, 10 Allen [Mass.] 374; Corcoran v. Holbrook, 59 N.Y. 518; Ryan v. Fowler, 24 N.Y. 410; Moore v. Railroad, 84 Mo. 481; Caughtry v. Woolen Co., 56 N.Y. 124; Birge v. Gardiner, 15 Cowan, 306; Wood on Master and Servant [2 Ed.] sec. 334. (2) That there was no evidence imputing or tending to impute negligence or imprudence to William O'Brien; and (3) if there had been -- being a question of fact -- it belonged exclusively to the jury, under proper intructions from the court -- and the court usurped the province of the jury in its instructions to them. Nagel v. Railroad, 75 Mo. 665; Norton v. Ittner, 56 Mo. 352; Mauerman v. Siemerts, 71 Mo. 104-105; Thorpe v. Railroad, 89 Mo. 650; Wharton on Negligence, sec. 425; Tabler v. Railroad, 93 Mo. 86. (4) Before William O'Brien can be charged with negligence in going upon the elevator, not only must the defective construction of the elevator have been known to him, but he must also have been aware of the danger therefrom. Wood on Master and Servant [2 Ed.] p. 763, sec. 376. (5) Whether William O'Brien knew, or ought to have known, of the defects in the construction of the elevator and the danger therefrom, were questions of fact to be submitted to the jury. Wood's Master and Servant [2 Ed.] p. 764, sec. 577. (6) The boy William O'Brien was not bound to examine into the safe and proper construction of the elevator. The use of the elevator was not incident to his employment, nor connected therewith, and he could not be expected to know how it was constructed and whether it was or was not safely constructed. It was the duty of the respondent to see that it was safely and properly constructed for the purposes for which it permitted it to be used; and not the duty of the boy to guard by any particular vigilance against accidents arising from the defective construction thereof. Ryan v. Fowler, 24 N.Y. 416. He was held only to ordinary care and prudence. (7) The trial court erred in rejecting expert testimony offered by appellant to show that the defects in the construction of the elevator could readily have been obviated or remedied. (8) The demurrer to the evidence admitted the facts the evidence tended to prove, and, in passing upon it, the court was required to make every inference of fact in favor of the appellant, which a jury might with any degree of propriety have inferred in her favor, and that, when viewed in this light, if the evidence was not sufficient to sustain the demurrer, the instruction should have been refused. Donohue v. Railroad, 91 Mo. 360.

Cunningham & Eliot for respondent.

The circuit court was right in taking the case from the jury, because: (1) The petition does not state facts sufficient to constitute a cause of action, in that (a) it does not show any duty in defendant to provide an elevator. Tabler v. Railroad, 93 Mo. 84-5. (b) It does not show that defendant was responsible for the character, construction or arrangement of the elevator in question. (c) It does not show that plaintiff's son was on the elevator at the request or invitation of defendant, or was engaged in the performance of his duty to defendant at the time of the accident. Straub v. Soderer, 53 Mo 38; Overholt v. Vieths, 93 Mo. 422; Moore v. Railroad, 84 Mo. 487-8; Andrews v. Lynch, 27 Mo. 167; Syme v. Steamboat, 28 Mo. 335; Burdsal v. Davies, 58 Mo. 138; Butler v. Lawson, 72 Mo. 227; Hart v. Harrison Wire Co., 91 Mo. 414. (2) There was no evidence tending to prove that the death of plaintiff's son was occasioned by the proximate cause alleged in the petition. Buffington v. Railroad, 64 Mo. 246; Harlan v. Railroad, 65 Mo. 22; Current v. Railroad, 86 Mo. 62; Waldhier v. Railroad, 71 Mo. 514; Gurley v. Railroad, 93 Mo. 445; Ely v. Railroad, 77 Mo. 34; Boland v. Railroad, 36 Mo. 484; Callahan v. Warne, 40 Mo. 131; Lord v. Railroad, 82 Mo. 139; Powell v. Railroad, 76 Mo. 80; Wharton's Law of Negligence, secs. 134-143; Shearman and Redf. on Neg., chap. 2; Cooley on Torts, p. 69. (3) The evidence showed clearly, and beyond a reasonable doubt, that the death of plaintiff's son was caused by his own negligence. Powell v. Railroad, 76 Mo. 80, and authorities cited on p. 83; Lenix v. Railroad, 76 Mo. 86; Maloy v. Railroad, 84 Mo. 271; Taylor v. Railroad, 86 Mo. 457; Devitt v. Railroad, 50 Mo. 302; Rains v. Railroad, 71 Mo. 164; Dowling v. Allen, 88 Mo. 293.

Brace J. Barclay, J., not sitting.

OPINION

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 plaintiff's testimony the court gave an instruction that the plaintiff could not recover. She thereupon took a non-suit with leave; her motion to set aside the non-suit 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 fifth day of August, 1886, about eleven 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 so 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."

It does not appear from the pleadings or evidence when or by whom the elevator in question was constructed or to whom it belonged it only appears that at the time of the accident and for some time prior thereto the defendant was in possession of the premises, operating the elevator, for the purposes of its business in transporting material (coke, coal, ore, iron, etc.) to and from the several floors of the building in which it was situate and that for the purposes of this business it was not necessary that any person should be transported on it. That there were stairways in the building for the use of those who desired to go up or down from one floor to another, but that...