Chamlee v. Planters' Hotel Co.

• Decision Date: 24 January 1911
• Citation: 134 S.W. 123,155 Mo. App. 144
• Parties: CHAMLEE v. PLANTERS' HOTEL CO.
• Court: Missouri Court of Appeals

134 S.W. 123

155 Mo. A. 144

CHAMLEE v. PLANTERS' HOTEL CO.

St. Louis Court of Appeals. Missouri.

January 24, 1911.

Rehearing Denied February 7, 1911.

1. MASTER AND SERVANT (§ 89) — INJURIES TO SERVANT — LIABILITY.

A master is not liable for negligent injuries to a servant, unless the servant at the time was engaged in the performance of a duty within the scope of his employment.

2. MASTER AND SERVANT (§ 284) — INJURY TO SERVANT — SCOPE OF EMPLOYMENT — QUESTION FOR JURY.

In an action for injuries to an employé, while operating a passenger elevator, caused by the fall of the elevator, evidence held to justify a finding that the employé was at the time acting within the scope of his employment.

3. MASTER AND SERVANT (§ 217) — INJURY TO SERVANT — ASSUMPTION OF RISK.

A danger arising from a defect in machinery, discoverable by ordinary care of the master, but which is neither known nor obvious to the servant, is not a risk incident to the employment of one engaged to operate the machinery, or instruct others in so doing.

4. MASTER AND SERVANT (§ 217) — INJURY TO SERVANT — ASSUMPTION OF RISK.

An employé engaged in the line of his duty in operating a passenger elevator, and instructing another in operating it, was injured by the fall of the elevator. The person he was to instruct had reported that the elevator was "dead." The employé did not know of the defect that caused the fall of the elevator, and employés about the elevator understood, by the expression "dead," merely that the power was off. Held, that the employé did not assume the risk of injury.

5. MASTER AND SERVANT (§ 226) — INJURY TO SERVANT — ASSUMPTION OF RISK.

Except where an injury to a servant results from the particular mode in which he uses an appliance furnished him, a servant does not assume a risk arising from the master's negligence, but he assumes only such risks as are ordinarily incident to the employment.

6. MASTER AND SERVANT (§ 234) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE.

A servant's knowledge of abnormal conditions pertaining to the place in, or the appliance with, which he is to work, must be determined, in applying the law of contributory negligence, by reference to the usual standard of what an ordinarily prudent person might do under like circumstances.

7. PLEADING (§ 387) — ISSUES, PROOF, AND VARIANCE.

A party cannot sue on one cause of action and recover of another.

8. TRIAL (§ 169) — DIRECTION OF VERDICT — WHEN AUTHORIZED.

Where a cause of action to which the proof is directed is unproved in its entire scope, the court must direct a verdict for defendant, but it must not do so when the proof is defective or does not precisely conform to the averments in some particular only.

9. MASTER AND SERVANT (§ 264) — INJURY TO SERVANT — ISSUES, PROOF, AND VARIANCE.

Where, in an action for injuries to a servant while operating a passenger elevator, the allegations of the petition, that the servant was required as part of his duty to operate the elevator, and that the master negligently directed him to use the elevator, knowing its defective condition, were proved, and evidence received without objection showed that he was injured while instructing another, and that such act was in the line of his employment, the variance between the petition and the proof must be disregarded, under Rev. St. 1909, §§ 1846, 1847, requiring the court to disregard a variance, unless it has misled the adverse party, and to charge the jury to find the facts in accordance with the evidence.

10. COURTS (§ 91) — DECISIONS — CONTROLLING DECISIONS.

The Court of Appeals must conform to the last decision of the Supreme Court on the subject.

11. APPEAL AND ERROR (§ 215) — QUESTIONS REVIEWABLE — INSTRUCTIONS — OBJECTIONS — EXCEPTIONS.

An instruction will not be reviewed on appeal, where the party complaining did not object but merely excepted to the giving of the instruction.

12. MASTER AND SERVANT (§ 273) — INJURY TO SERVANT — EVIDENCE — ADMISSIBILITY.

Where, in an action for injuries to an employé while operating a passenger elevator, caused by the fall of the elevator, the employé testified that on being informed by a new operator that the elevator was "dead," he went into the elevator to ascertain whether it was "dead" by the misuse of the hand line, or whether it was out of order, evidence that the word "dead" was understood by the employés about the elevator to signify that the power was off was properly received.

13. EVIDENCE (§ 265) — PLEADINGS AS EVIDENCE.

A pleading of a party introduced in evidence by the adverse party must be considered by the jury as a whole; but, while they must do so, admissions made by the pleader, and allegations against the interests of the adverse party, are not of equal probative force.

14. DAMAGES (§ 132) — PERSONAL INJURIES — EXCESSIVE DAMAGES.

An active, intelligent young man, of fair earning capacity, lost his foot through having it crushed. He was confined to the hospital for many months and suffered great pain of body and mind. His earning capacity was essentially diminished, and he was crippled for life. He would continue to suffer pain. Held, that a verdict for $6,000, was not excessive.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Jarrett W. Chamlee against the Planters' Hotel Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Percy Werner, for appellant. Earl M. Pirkey, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through defendant's negligence. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant owns and conducts a hotel in the city of St. Louis, and plaintiff was in its employ at the time of his injury, as head ashman, and with other duties pertaining to the operation of an elevator. It appears that, though plaintiff was originally employed for the purpose of cleaning up and removing ashes from the engine room of the hotel and given the title of head ashman, he was also directed by his superior, the engineer, to operate the employés' passenger elevator, in the absence of the regular elevator boy, and to see that such elevator was kept in operation. Plaintiff had been in the employ of defendant seven months at the time of his injury, and had recently been charged with the duty of instructing one Smith, the operator of the elevator referred to, who had been in the service but three days. The testimony for plaintiff tends to prove that as he was passing from the engine room toward the elevator he met Smith, the elevator boy, and Smith said to him, "The elevator is dead," whereupon plaintiff, together with Smith, went into the elevator and proceeded to operate it, we believe, to ascertain the fact with respect to the complaint of Smith, communicated in the word "dead." By the word "dead" plaintiff inferred the elevator was motionless, because the power was not properly applied through pulling the line as it should be, and, as Smith had been in the service for only a few days, he thought possibly he had pulled up on the line which communicated the power when he should have pulled it down. The elevator is one of those which operates by hydraulic power furnished by means of water pressure in a large cylinder attached. The power is communicated, for the purpose of moving the car, through pulling a line which passes perpendicularly through same. It is in evidence that, for the purpose of moving the elevator upward, the line is to be pulled down, and for the purpose of moving it downward, the line is to be pulled up, and plaintiff thought the car had refused to respond under the hand of Smith because the power was misapplied. Upon entering the car, together with Smith, plaintiff applied the power by properly pulling the line, and it proceeded properly from the basement to the third floor, where a stop was made for one of the chambermaids, who came into the car with a bundle of linen and was conveyed to the ninth floor. After the chambermaid went out, the car proceeded without any trouble to the eleventh, or topmost, floor of the building. Plaintiff then reversed the car by pulling the line upward, and it proceeded down as usual to the third floor, where a stop was made for an employé en route to the basement for ice. After thus stopping at the third floor, plaintiff again applied the power, and the car proceeded downward a few feet, when his attention was attracted by the rattling of the safety catches beneath, spoken of in the evidence as "dogs." These safety appliances are affixed beneath the elevator for the purpose of catching and holding it in event of a fall. Plaintiff was advised that these appliances were slightly out of order, and that they sometimes caught in the sides of the elevator shaft when they should not, but it appears no danger inhered in such defect, and he had been advised by the chief engineer how to dislodge them by the use of a Stilson wrench when such catching occurred. Upon noticing the rattling of the safety catches, as though they were scraping on the sides of the elevator shaft, he returned the car a few feet upwards to the third floor for the purpose, we presume, of permitting the safety catches to readjust themselves, as it does not appear he did anything pertaining thereto except to move the car upward a few feet, and then start it again on its downward course. It appears plaintiff properly applied the power by pulling the line, to the end of lowering the car to the basement after this stop was made, and when it was a few feet below the third floor, the car suddenly dropped to a point just below the halfway landing between the first and second floors of the building, at which point it stopped and rebounded with great force. Through the sudden stoppage and rebound of the elevator, plaintiff was thrown from his position at the line upon the floor of the car, with one of his feet extended, so that it was caught and crushed...