Cento v. Security Bldg. Co.

• Decision Date: 12 November 1936
• Docket Number: 33531
• Parties: CENTO et al. v. SECURITY BLDG. CO
• Court: Missouri Supreme Court

99 S.W.2d 1

CENTO et al. v. SECURITY BLDG. CO

No. 33531

Supreme Court of Missouri, First Division

November 12, 1936

Wayne Ely and Tom Ely, Jr., both of St. Louis, for appellant.

Herson & Kratovil, Joseph N. Hassett, and Ernest E. Baker, all of St. Louis, for respondents.

OPINION

BRADLEY, Commissioner.

Action to recover $ 15,000 for personal injury. Verdict for defendant. Motion for a new trial sustained, and defendant appealed.

The Ocean Accident & Guarantee Corporation was joined as a party plaintiff because it was insurance carrier of plaintiff Cento's employer at the time, and had paid compensation to Cento and had paid certain medical and hospital bills. When speaking of plaintiff hereinafter, we have reference to Cento.

Plaintiff was injured May 14, 1931, while in the employ of the Nelson Painting Company, and while removing some scaffold boards from the 11th floor of the Security building (St. Louis). The boards, or most of them, were about 14 feet in length, 12 inches in width and 1 inch thick, and were being loaded on the freight elevator. The 11th floor is the topmost of the building. The elevator was stopped at or near the 10th floor and a part of the top thereof was laid back and the boards placed therein from the top, the down ends resting on the floor of the elevator and the upper ends extending about 6 feet beyond the top of the elevator. There was an iron beam across the elevator shaft above the 11th floor, but just how far above is not clear. The inference is that the beam was a short distance above the 11th floor ceiling. It is plaintiff's theory that he was injured by the elevator operator moving the elevator upwards until one of these boards struck the iron beam, buckled out and struck plaintiff, who was then standing near and in front of the open shaft on the 11th floor.

Four acts of negligence are charged viz.: (1) That defendant knew or by the exercise of ordinary care could have known, that plaintiff was standing in front of the open door of the elevator shaft on the 11th floor, and that without warning defendant negligently caused the elevator, with the boards projecting above the top thereof, to suddenly move upward and against the crossbeam at the top of the shaft; (2) that defendant knew, or by the exercise of ordinary care could have known, that there was a crossbeam over the top of the elevator shaft and that the upper ends of the boards projected above the top of the elevator, and negligently caused the elevator to move upward until the ends of the boards struck the crossbeam causing the boards to strike plaintiff; (3) that defendant knew, or by the exercise of ordinary care could have known, that the upper ends of the boards projected above the top of the elevator and were likely to come in contact with the crossbeam over the top of the shaft, and negligently caused the elevator to move upward, without keeping a watch over and about the upper ends of the boards as the elevator moved upward, which defendant could have done by the exercise of ordinary care, and thereby have stopped the elevator before the boards struck the crossbeam; and (4) that defendant negligently caused the elevator to move upward without first exercising ordinary care to determine that the boards would not strike the crossbeam.

The answer is a general denial and contributory negligence pleaded generally and specifically, the specific charge being that plaintiff 'negligently and carelessly directed and requested the operator of the elevator to move the elevator upward at the time complained of, when he knew, or by the exercise of ordinary care could and would have known that there was danger that the boards on top of said elevator might come in contact with obstructions and that said boards might thereby be broken or displaced and caused to fall upon and strike" him.

The motion for new trial was sustained on the 10th alleged ground charging error 'in giving every instruction' on behalf of defendant. In the brief plaintiff says that defendant's instructions 3 and 6 were erroneous and defendant says that under the facts these instructions were not erroneous and that, if they were, such is not of consequence, because plaintiff, under the facts, was not entitled to recover for two reasons, first, that there was no substantial evidence that defendant was negligent as charged, and, second, that plaintiff was guilty of contributory negligence as a matter of law, and that the court should, therefore, have given defendant's peremptory request at the close of the whole case.

We first dispose of the contention that there was no substantial evidence that defendant was guilty of any negligence charged. Stating the facts and reasonable, inferences most favorable to plaintiff, as is the rule on a demurrer to the evidence, we have this situation: When the boards were loaded the floor of the elevator was placed somewhat above the 10th floor with the top about level with the 11th. (We give this position of the elevator from the evidence and from reasonable inference, considering the length of the elevator and the distance between the floors) Plaintiff stood on the 11th floor in front of the open shaft and as the boards were handed to him he stacked them in the elevator (with the assistance of the operator), leaning them against the crossbar that separated the two sides of the elevator top. Plaintiff says that he had loaded from 4 to 7 boards before the accident, while the elevator operator says there were 16 boards loaded before the accident. Plaintiff testified that 'after placing the last board in the elevator, Mr. Lucks was the last to hand me his end; I was dropping it down in there, and just had it placed, and I have a recollection of Mr. Lucks saying he would take the ladders down on the next load; I turned a little bit and said 'All right,' and as I turned back, I was in that crossed position, getting out of the shaft. I noticed the elevator starting up, heard a crash, and almost instantly I was knocked backwards. That's the last I remember. I was hit across the top of the head by this board. The crash or noise appeared to come from above where I was standing there in the shaft.' Plaintiff further said that when he 'placed that board in the elevator it was not cracked or broken. * * *'

'Q. Did you see this board that was in the elevator that struck you after you came from the hospital? A. After I left the hospital?

'Q. Yes. A. When I returned to work, at that time, I saw it lying in the shop.

'Q. Will you tell us what condition it was in? A. It was badly cracked in the center of the board, a long crack about several feet, and kind of cracked along the center and a piece taken out, a big splinter.

'Q. You mean in the center of the board where that piece was broken out? A. Yes.'

According to plaintiff, the elevator was 7 or 8 feet in height, and the top, as stated, was about level with the 11th floor. The distance between the 10th floor and the 10th floor ceiling was about 10 feet. The distance between the 10th floor ceiling and the 11th floor is not shown, but it must have been some appreciable distance. If the elevator top was about level with the 11th floor and the elevator was 8 feet in length, then the floor of the elevator, while the boards were being loaded, was somewhat over two feet above the level of the 10th floor. Plaintiff and Emma Galli, whose evidence is hereinafter referred to, were the only witnesses offered on the merits in plaintiff's case.

Mike Sullivan (born in Ireland and wished he 'was back there') was the elevator operator and a witness for defendant. He testified on direct examination that the elevator floor was approximately at the 10th floor while the loading was going on; that when 16 boards were loaded 'he (plaintiff) told me to come up a little bit and I come up about 2 or 3 inches * * * and the first thing I heard a woman scream on the 11th floor, and this boy was knocked out. * * * No, I didn't know what knocked him out.' On cross-examination Sullivan said that 'the only reason I stopped that elevator was because I heard a woman scream and I stopped immediately. * * * I didn't hear no board crack. * * * Yes, I know the 11th floor is the top floor of the building and I knew that the elevator shaft stopped at the 11th floor. (The shaft did not stop at the 11th floor) There was a beam going across the top of that elevator shaft. * * * I placed the boards. I did that because I wanted them placed in there safely and securely. * * * No, there wasn't anything wrong with the way the boards were placed on the levator; they were all placed in the right place. * * * I didn't feel any shock or jar in the elevator after I started up, and didn't feel anything unusual about the operation.' Sullivan further testified that the distance between the upper ends of the boards and the beam over the elevator shaft was about 31/2 feet, and that he knew the elevator, with the boards therein, could not be moved up to the 11th floor because of the distance the boards projected above the top of the elevator. He also said that after he heard 'this woman scream and saw Cento lying there on the 11th floor, I saw all the boards in the elevator the same as I placed them and none of the boards had toppled over or bellied out. * * * I saw the board split myself. I saw that broken board in the alley afterwards; not in the elevator. Yes, when I was taking it out of the elevator. * * *

'Q. Did you see any board outside of the elevator? A. No, they were all in the elevator.

'Q. Say this was the board -- I don't quite get the way the board was split? A. Right from the top down here, down about that much (indicating).

'Q. About a foot? A. About a foot and a half. * * *

'Q. Tell the jury whether the top of this...