Cech v. Mallinckrodt Chemical Co.

• Citation: 20 S.W.2d 509,323 Mo. 601
• Decision Date: 06 August 1929
• Docket Number: 28020
• Parties: Michael Cech, Jr., George Cech and Charles Cech, by Harry Ter Braak, Their Guardian, v. Mallinckrodt Chemical Company, Appellant
• Court: United States State Supreme Court of Missouri

20 S.W.2d 509

323 Mo. 601

Michael Cech, Jr., George Cech and Charles Cech, by Harry Ter Braak, Their Guardian, v. Mallinckrodt Chemical Company, Appellant

No. 28020

Supreme Court of Missouri

August 6, 1929

Rehearing Denied October 8, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

Jones Hocker, Sullivan & Angert and Ralph T. Finley for appellant.

(1) The court erred in refusing the defendant's demurrer to the evidence. (a) The evidence shows as a matter of law that the death of deceased must have been the result of his own negligence. Bock v. Dry Goods Co., 173 S.W. (Tex. App.) 582; Kauffman v. Shirt Co., 140 P. 15; Grand Rapids Bedding Co. v. Furniture Temple Co., 188 N.W. 538; Keenan v. Electric Eliminating Co., 159 Mass. 379; Patterson v. Hemenway, 148 Mass. 94; Gaffney v. Brown, 150 Mass. 479; State ex rel. Cox v. Trimble, 279 S.W. 60; Unrein v. Hide Co., 244 S.W. 924; Marshall v. Rys. Co., 209 S.W. 931; Bonanomi v. Purcell, 287 Mo. 448; Williams v. Railroad, 257 Mo. 114. The negligence of the deceased will bar recovery even though there be a violation of the statute or ordinance in equipping the elevator. Simpson v. Iron Works Co., 249 Mo. 386; Huss v. Bakery Co., 210 Mo. 44; Higgins v. Pulley Co., 240 S.W. (Mo. App.) 255; Wammack v. Hill, 212 Mo.App. 193. (b) If it could be said that the evidence fails to show that the negligence of deceased was the cause of his death, then certainly the evidence is insufficient to show what was the proximate cause of his death. In such case the demurrer to the evidence must be sustained. Goransson v. Manufacturing Co., 186 Mo. 307; Grant v. Ry. Co., 190 S.W. 589; Strother v. Railroad, 188 S.W. 1105. (c) Likewise, if it could be said that the negligence of the deceased was not the proximate cause of his death, the verdict for the plaintiffs is necessarily based on conjecture, and cannot stand. Coin v. Lounge Co., 222 Mo. 508; Kane v. Railroad, 251 Mo. 29; Swearingen v. Railroad, 221 Mo. 659; Hayes v. Berry, 184 S.W. (Mo. App.) 915; Fowler v. Elevator Co., 143 Mo.App. 426; State ex rel. v. Cox, 250 S.W. 551; St. Louis & S. F. R. Co. v. Conarty, 238 U.S. 243; Lang v. N. Y. Cen. Railroad Co., 255 U.S. 461. (d) No case was made under the evidence on account of any violation of Sec. 6789, R. S. 1919. Said statute has been expressly held not to apply to employees engaged in using an elevator, and the evidence shows, if it shows anything about how the accident occurred, that the deceased was or may have been using the elevator at the time of his death. Latapie-Vignaux v. Saddlery Co., 193 Mo. 12; Brown Shoe Co. v. Ins. Co., 220 Mo.App. 649. (2) The court erred in refusing defendant's instruction seeking to withdraw from the jury the allegation with reference to the violation of the statute, which is Sec. 6789, R. S. 1919. No case was made under said statute. Latapie-Vignaux v. Saddlery Co., 193 Mo. 12; Brown Shoe Co. v. Ins. Co., 220 Mo.App. 649.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondents.

(1) There was ample proof that defendant was guilty of negligence. The failure of defendant to equip its elevator with the safeguards required by the statute and ordinance was negligence per se. Sec. 6789, R. S. 1919; Wagner's Revised Code of St. Louis 1914, sec. 2183, par. 30; Burt v. Nichols, 264 Mo. 15; Prapuolenis v. Const. Co., 279 Mo. 366; Kid v. Railroad, 310 Mo. 1, 30. (2) The issue of the causal relation between defendant's negligence and the injury was a question of fact for the jury, and not a question of law for the court. (a) In passing upon a demurrer to the evidence it is the duty of the court to accept as true all evidence in favor of the plaintiff, and all inferences in plaintiff's favor which may with any degree of propriety be drawn therefrom, and the court cannot draw inferences in favor of defendant to counterbalance or overthrow presumptions or inferences in favor of plaintiff. Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gaslight Co., 73 Mo. 219. (b) The court should sustain the demurrer only when the inferences to be drawn from the evidence, considered in the light of the foregoing rule, are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Scherer v. Bryant, 273 Mo. 602; Gratiot v. Railroad, 116 Mo. 466; Steffens v. Fisher, 161 Mo.App. 393. (c) The issue of proximate cause, like any other question of fact, may be proven by circumstantial evidence, and when the plaintiff shows a state of affairs from which the jury may reasonably infer that the negligence proven brought about the casualty, the question is one for the jury, even though plaintiff's evidence does not exclude all other possibilities. Buesching v. Gas Co., supra; Soeder v. Railroad, 100 Mo. 673; Settle v. Ry. Co., 127 Mo. 336; Hatchett v. U. Rys. Co. (Mo.), 175 S.W. 878; Stewart v. Gas Co. (Mo.), 241 S.W. 909; Daly v. Pryor, 197 Mo.App. 583; Staggs v. Mining Co. (Mo. App.), 199 S.W. 717; Bock v. Dry Goods Co. (Tex.), 212 S.W. 635. (d) Where defendant neglects to provide required safety devices, and an injury occurs which would have been prevented thereby, such failure on defendant's part constitutes the proximate cause of the injury. Hays v. Railroad, 111 U.S. 228; Ward v. Dry Goods Co., 248 Mo. 348. (e) Where safety appliance statutes are admittedly violated, and death, unexplained except by the physical facts, ensues, an action to recover therefor will not be defeated by plaintiffs' inability to show the precise movements of the victim of defendant's negligence immediately prior to the casualty. Burt v. Nichols, 264 Mo. 17. (3) Under the evidence, the court could not convict deceased of contributory negligence as a matter of law. (a) The burden of proving contributory negligence was upon defendant. Raymen v. Galvin (Mo.), 229 S.W. 750; Chaar v. McLoon, 304 Mo. 238; Cool v. Petersen, 189 Mo.App. 717. (b) The presumption is that the deceased exercised ordinary care for his own safety, and in a case of this nature, where there is no eyewitness to the accident, it is for the jury to say whether an inference of negligence is to be drawn, contrary to the presumption. Buesching v. Gas Co., supra; Stewart v. Gas Co., supra; Burt v. Nichols, supra. (c) The defendant's violation of the statute and ordinance is to be considered in determining the question of negligence on the part of the deceased. The statute and ordinance were enacted for the very purpose of preventing injury through inadvertence or inattention on the part of persons required to be around elevator shafts or similar structures, and to hold that such conduct deprives the injured of the protection of such legislation would largely destroy its beneficial effect. Unrein v. Hide Co., 295 Mo. 353; Simpson v. Iron Works, 249 Mo. 376. (4) The court properly refused to withdraw the assignment of negligence under the statute. (a) There was no direct evidence to show that the elevator was in actual use at the time of the injury, so as to bring the case within the exception set out in the statute. The court could not properly have given the instruction on the assumption that such was the fact. (b) Defendant did not below, and does not here, controvert the fact that it failed to provide the safety appliances required by the city ordinance. Such failure constitutes negligence per se. The refusal of the court to withdraw the assignment of negligence in this respect, under the statute, was immaterial, and could not have affected the result of the trial. Secs. 1276, 1513, R. S. 1919; Beck v. Hauling Co., 293 S.W. 449; Noble v. Blount, 77 Mo. 239; Schuepbach v. Gas Co., 232 Mo. 612; Shinn v. Railroad, 248 Mo. 181; Winters v. Hines, 207 Mo.App. 417; Citizens Bank v. Mining Co., 210 Mo.App. 613; Drain v. Railroad, 86 Mo. 582; Irwin v. McDougal, 274 S.W. 923.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Plaintiffs are the minor children of Michael Cech, deceased, and, their mother being dead, they sued by their guardian in the Circuit Court of the City of St. Louis, to recover damages for the death of their father, who was killed on February 16, 1923, by falling down an elevator shaft in defendant's manufacturing plant. Plaintiffs recovered judgment for $ 10,000, from which defendant appeals.

Michael Cech was a laborer in the employ of defendant in its building No. 6, in which one of the processes carried on was the making of tannic acid for use in its business of manufacturing chemicals. He had been so employed for five or six years prior to his death. He was a steady worker, earning about $ 25 per week, and at the time of his death was about thirty-two years of age.

The tannic acid was manufactured in a still located on the first floor of defendant's said building, and three or four times a week the liquor was pumped from the still, by means of a steam pump located on the same floor, to a large vat or tank on the third floor. Defendant maintained in the building a freight elevator which ran from the first to the fourth floors and which was customarily used by employees in going from floor to floor. In front of the opening into the elevator shaft on each floor, and sixteen to eighteen inches possibly two feet, from the side of the shaft, there was a fire door which moved on an overhead slide or track and was opened by pushing to one side. Inside the fire door there was a wooden gate, which moved up and down and could be raised or lowered at will whether the elevator car was at that floor or not. It did not operate automatically, that is, was not operated or affected by the movement of the elevator, nor did its position affect the operation of the elevator. The elevator car could be moved by a person on any floor of the building, whether the car was at such...