Chambers v. Kupper-Benson Hotel Co.

• Citation: 154 Mo. App. 249,134 S.W. 45
• Parties: CHAMBERS v. KUPPER-BENSON HOTEL CO.
• Decision Date: 30 January 1911
• Court: Missouri Court of Appeals

134 S.W. 45

154 Mo. A. 249

CHAMBERS v. KUPPER-BENSON HOTEL CO.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

1. APPEAL AND ERROR (§ 927)—DEMURRER TO EVIDENCE—REVIEW.

The appellate court, on disposing of the question arising on defendant's demurrer to the evidence, must give controlling effect to the evidence of plaintiff.

2. CARRIERS (§ 247) —PASSENGERS —EXISTENCE OF RELATION.

Where a hotel elevator for the accommodation of guests stops at a floor and the door is opened for the reception of passengers, the relation of carrier and passenger begins the moment the latter starts to enter the car and brings himself within the range of its possible activities.

3. CARRIERS (§ 280)—PASSENGERS—OBLIGATION OF CARRIERS.

A carrier of passengers by elevator must use the utmost care and skill in the choice and maintenance of the machinery and appliances and the selection of operatives.

4. CARRIERS (§ 247)—PASSENGERS—EXISTENCE OF RELATION.

A guest at a hotel approached the passenger elevator with the intention, recognized by the operator, of becoming a passenger. The operator, who had started up, stopped and returned to the floor for the sole purpose of receiving the guest and his companions. The elevator door was not entirely closed when the descent began and the operator opened it and stopped the car at the proper place to admit passengers. Held, that the relation of carrier and passenger began when the car was returned and stopped at the floor and when the elevator door was opened by the operator and the guest started to enter in front of the door.

5. CARRIERS (§ 318)—PASSENGERS—INJURIES —NEGLIGENCE.

Where, in an action for the death of an elevator passenger caused by the fall of the elevator, the evidence showed that the car was in perfect condition and under complete control of the operator, who stood with his hand on the lever, and that the elevator could not descend unless the lever was moved, there was evidence justifying the conclusion that the operator voluntarily, or through inattention to duty, moved the lever, thereby causing the elevator to fall, and plaintiff to recover need not produce a witness who saw the operator move the lever.

6. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Where, in an action for the death of a passenger on an elevator, the evidence of plaintiff did not present a case under the humanitarian rule, but did present the issue whether the injury was caused solely by the negligence of the operator or wholly or in part by the negligence of decedent, and the defendant's evidence clearly showed that the operator realized the peril to decedent, but in his anger refused to make a simple turn of the hand that would have saved decedent's life, the refusal to withdraw from the jury negligence under the humanitarian doctrine was not prejudicial error to defendant.

7. JUDGMENT (§ 248)—ISSUES AND PROOF.

A plaintiff must recover, if at all, on the issues tendered by his pleadings and evidence and submitted in his instructions.

8. DEATH (§§ 65, 66, 68)—ACTION FOR NEGLIGENT DEATH—EVIDENCE—ADMISSIBILITY.

In an action by a widow for the negligent death of her husband, his age, expectancy, health, habits, business capacity, etc., may be proved to show the pecuniary loss sustained.

9. DEATH (§ 71)—ACTION FOR NEGLIGENT DEATH—EVIDENCE—ADMISSIBILITY.

In an action by a widow for the negligent death of her husband, her age, expectancy, and health may be shown as bearing on the pecuniary loss sustained.

Appeal from Circuit Court, Jackson County.

Action by Regina V. Chambers against the Kupper-Benson Hotel Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Warner, Dean, McLeod & Timmonds, for appellant. Ellis, Cook & Barnett and Beardsley, Gregory & Kirshner, for respondent.

JOHNSON, J.

Plaintiff, the widow of M. A. Chambers, deceased, prosecutes this action to recover damages for the death of her husband, which she alleges was caused by the negligence of defendant. The jury before which the cause was tried gave her a verdict for $6,000, and the case is here on the appeal of defendant from a judgment for plaintiff on that verdict.

Defendant is a corporation engaged in operating the Hotel Kupper, a large hotel in Kansas City. Mr. Chambers was a lawyer and with plaintiff, his wife, as a partner, conducted a law, loan and abstract office in Hoxie, Kan. His practice and business were lucrative and brought him an income of from $5,000 to $7,000 per annum. In October, 1908, Mr. and Mrs. Chambers, accompanied by their daughter, who was 17 years old, visited Kansas City and were guests of the Hotel Kupper. In the evening of October 24th, they went out to dinner and returned to the hotel about 8 o'clock. The weather being inclement, Mr. Chambers wore an overcoat and carried an umbrella. They entered the lobby at the north entrance and proceeded across to the south side of the room to the door of the passenger elevator. The room was well filled with people. Mr. Chambers was a heavy man, deliberate in his movements, and their progress was not rapid. As they approached the elevator, Mr. Chambers led the way, his daughter followed immediately, and his wife was two or three steps behind. The elevator, carrying two passengers, had just started up from the lobby, when the operator, becoming aware that other guests wished to become passengers, stopped the car at a point two or three feet above the lobby floor and started back for the express purpose of taking on the Chambers family. The car itself had no door, but there were sliding metal doors at the entrance to the elevator shaft, and it was the duty of the elevator boy to keep these doors closed except when the car was at rest at the lobby for the purpose of receiving and discharging passengers. The boy was in the act of closing the doors as the car started to ascend, but had not completely closed them, when he stopped and returned. There is evidence introduced by plaintiff to the effect that the boy opened the doors, brought the car to a complete stop at the lobby floor, and that Mr. Chambers started to enter, and succeeded in placing his forward foot on the car floor with his other foot still on the lobby floor, when the car dropped suddenly and without warning and descended with great rapidity, until the obstruction to its descent offered by the body of the unfortunate man, which was caught between the top of the car entrance and the lobby floor, produced slack in the cables, which automatically set in operation an appliance that shut off the power and applied the brakes. Mr. Chambers received injuries from which he died that evening. The elevator was run by electricity, and an expert examination made immediately after the injury disclosed no defect in the machinery or any of the appliances. Operation of the elevator was resumed immediately, and it appeared to be in perfect order.

Both parties tried the case on the theory that the one great issue was whether the injury was caused by the negligence of the elevator boy or was caused in whole or in part by negligence of the deceased. The petition alleges: "That by reason of the negligence, carelessness, and unskillfulness of the defendant company, its officers, agents, servants, and employés in charge of said elevator, and of the mechanism thereof and as a result of such negligence, carelessness, and unskillfulness, while the body of said M. A. Chambers was partly in and partly outside said elevator car, and while he was so as aforesaid in the act of entering into the same, the said car suddenly descended and fell, and in so doing the steel crossbar across the front and near the top of said descending car caught said M. A. Chambers across the shoulders and crushed his body and legs downward upon the main floor of the building and into a very narrow space, with such force that the bones of his limbs and body were broken and crushed and injuries inflicted causing his death a few hours later. That defendant was further negligent, careless, and reckless in the premises, in that after said M. A. Chambers was in a perilous position and before the injuries herein complained of had been inflicted, and after defendant, through its agent and servant in charge of said car knew, or through the exercise of such care as was incumbent upon the operator, might have known of said peril in time to avert the same, it neglected and failed to avert it and failed to raise said elevator car, but allowed the same to continue to crush the body of said M. A. Chambers." The answer is a general denial and a plea of contributory negligence.

On behalf of defendant the evidence tends to show that Mr. Chambers approached the elevator in great haste and called sharply, "Going up," when he observed the car starting to ascend; that the elevator boy, hearing the call, stopped and started to descend; that he stood in the car facing the entrance with his right hand on the lever that controlled the car and his left on the sliding door; that as the car descended Mr. Chambers impatiently seized the door and started to open it wider; that the operator struggled to keep the intruder out; that Mr. Chambers violently jerked the door open and proceeded to step into the car while it was still descending; and that the car continued to descend until arrested by the imprisoned body.

The elevator boy testified, in part, as follows: "Q. Where was your left hand at that time? A. It was on the door, elevator door. Q. Where was your right hand? A. On the elevator...