Cooper v. Century Realty Co.

• Decision Date: 27 November 1909
• Citation: 123 S.W. 848
• Parties: COOPER v. CENTURY REALTY CO.
• Court: Missouri Supreme Court

123 S.W. 848

COOPER v. CENTURY REALTY CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. CARRIERS (§ 235)—CARRIAGE OF PASSENGERS— WHO ARE CARRIERS.

A company engaged in operating and managing an office building, and in connection therewith operating a passenger elevator for the use of tenants and others, is a common carrier of passengers.

2. CARRIERS (§§ 314, 315, 316)—CARRIAGE OF PASSENGERS—INJURIES—ACTIONS—PLEADING.

In an action for injuries from a carrier's negligence, it is sufficient to charge negligence in general terms, and, under such a petition, plaintiff need only show that defendant was a common carrier and that plaintiff was a passenger

and injured by the carrier while being carried, from which it will be presumed that the injury was from the carrier's negligence, but if the petition charges specific negligence the acts charged must be proven as alleged before a prima facie case is made.

3. CARRIERS (§ 316)—CARRIAGE OF PASSENGERS — INJURIES — ACTIONS — BURDEN OF PROOF.

In an action for injuries received while a passenger on an elevator, the evidence showed that plaintiff stepped into the elevator; that there was no person in the elevator to run it, and, that immediately upon her stepping in, the elevator began to descend and she was injured in attempting to get out. Held, that plaintiff was not required to show what might have caused the elevator to descend, nor to show that certain things did not cause it to do so, but was only required to show what did cause its descent, and the burden of showing that contributory negligence of plaintiff caused the elevator to descend is on defendant.

4. CARRIERS (§ 318)—CARRIAGE OF PASSENGERS — INJURIES—ACTIONS—SUFFICIENCY OF EVIDENCE.

Evidence in an action for injuries received while a passenger on an elevator, held to support a verdict for plaintiff.

5. CARRIERS (§ 321)—CARRIAGE OF PASSENGERS— INJURIES—ACTIONS—INSTRUCTIONS.

In an action for injuries received while plaintiff was a passenger on defendant's elevator, the court instructed that if, when plaintiff approached the elevator, the door was open; and plaintiff believed the elevator was in service and entered it, and the elevator started downward and there was no person operating the elevator; that if plaintiff attempted, on its starting down, to leave said elevator, and in attempting to do so was injured, and if the hydraulic machine operating the elevator was defective and was so known to defendant, or by ordinary care might have been so known, and the descent of said elevator was directly caused by the hydraulic machine being defective, and if plaintiff, after the elevator started to descend and by reason thereof, was seized with alarm for her safety and had reasonable cause to apprehend peril, and the appearance of danger was imminent, leaving no time to deliberate, then their verdict must be for plaintiff. It was undisputed that the elevator was an hydraulic elevator, and that the apparatus controlling the lever for starting and stopping the elevator had been removed or so fixed as to be ineffective, thereby permitting the elevator to ascend and descend without hindrance according to the weight or load on the car and the counterweight or hydraulic pressure on other parts of the elevator, and that the operator had been operating the elevator for some time prior to the injury without such apparatus. Held. that there was evidence sufficient to justify the instruction.

6. CARRIERS (§ 321)—INJURY TO PASSENGER— INSTRUCTIONS.

In an action against the owners of an office building who ran passenger elevators for injury to a passenger on the elevator, the instructions given held to properly present the law of the case.

7. CARRIERS (§ 321)—CARRIAGE OF PASSENGERS — ACTIONS FOR INJURIES — INSTRUCTIONS.

In an action for injuries while a passenger on an hydraulic elevator, there was evidence that the car and its counterweights and the hydraulic pressure were evenly balanced, and that to keep the car stationary, the operating lever had to be kept in constant motion back and forth; that the elevator was stationary when plaintiff and another person stepped into it; that there was no operator in the elevator and that immediately upon their stepping into it it began to descend. Held, that a requested instruction that there was no evidence that the lever of the elevator, on account of any jarring caused by plaintiff and her companion stepping into the elevator, was caused to move sufficiently to allow the elevator to descend, or that the lever moved at all on account of such jarring, was properly refused.

8. CARRIERS (§ 321)—CARRIAGE OF PASSENGERS— INJURIES—ACTIONS—INSTRUCTIONS.

In an action for injuries to plaintiff while a passenger on an elevator, there was evidence to show that it was an hydraulic elevator; that the elevator and the counterweights balanced; that the apparatus around the lever operating the elevator to hold and control it had been removed or rendered inoperative; that in order to stop the elevator and keep it at a standstill the lever must be constantly kept in motion. Held, that a requested instruction that there was no evidence that the descent of the elevator was due to any defect or defects in the machinery by which said elevator was controlled was properly refused.

9. CARRIERS (§ 321)—CARRIAGE OF PASSENGERS— INJURIES—ACTIONS—INSTRUCTIONS.

In an action for injuries to plaintiff while she was a passenger on an elevator, the evidence showed that there was no operator on the elevator; that the door was open and plaintiff and a companion stepped into the elevator, not knowing of the absence of the operator; that the elevator began immediately to descend; that plaintiff was alarmed for her safety and attempted to get out of the elevator and was injured. Held, that the court properly refused to instruct the jury that there was no evidence to show that the injuries complained of by plaintiff were caused by the descent of the elevator.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by May Travis Cooper against the Century Realty Company. There was a judgment for plaintiff and a new trial granted, and plaintiff appeals from the order granting the new trial. Order granting new trial reversed, and cause remanded with directions to reinstate the judgment.

This suit was begun in the circuit court of the city of St. Louis by the plaintiff to recover $25,000 damages for personal injuries received by her through the alleged negligence of the defendant. A trial was had, and the judgment was for plaintiff for the sum of $5,000. The court sustained a motion for a new trial for the reason stated, that it should have sustained a demurrer to the evidence at the close of the whole case. From this order granting a new trial, the plaintiff duly appealed the cause to this court.

The character of the legal propositions involved call for a copy of the petition upon which the cause was tried. It was as follows (formal parts omitted): "That defendants are now, and were at all times herein mentioned, corporations duly organized and existing under the laws of the state of Missouri, and having capacity to sue and liable to be sued, and that such corporations are and were at all times herein mentioned, in possession of and engaged in operating, maintaining, and managing a ten-story office building commonly known as the Century Building and situated on the northwest corner of Olive and Ninth streets in the city of St. Louis, Mo. That on or about the 29th day of April, 1903, the date of the negligent acts in this petition complained of, defendants in the operation, maintenance, and management of such Century Building were operating, managing, and maintaining in said building a system of passenger elevators in vertical shafts; and that said elevators were designed and intended by defendants for the use and enjoyment of the tenants of said building, their employés, and others frequenting said building in being carried thereon as passengers. That on said last-mentioned day, the Kinloch Telephone Company, a corporation carrying on a general telephone business and funishing the services of a telephone exchange to its various subscribers, was a tenant of defendants," and occupied a large number of offices on the tenth floor of said Century Building, and that plaintiff on said day was an employé of said Kinloch Telephone Company in the capacity of a night exchange operator, working in said offices on said tenth floor of said building; and that as an incident of her said employment with said tenant, plaintiff, on said day, was entitled to use the said system of elevators and to be carried thereon by defendants as a passenger. Now, at about 7 o'clock a. m. on said 29th day of April, 1903, plaintiff left the said offices of the Kinloch Telephone Company for the purpose of returning to her home, and that as she approached said elevator shaft on said tenth floor of said building, the door or gate of one of said elevators used for carrying passengers was open and the floor of said elevator was standing at or near a level with the flooring of said tenth floor of said building, in the same manner and appearance as when said elevator was in actual use for the carrying of passengers. And that defendants on said day and prior thereto, when the doors or gates opening into said shafts were left open and the said elevators placed in proper position in the various floors of said building for the reception of passengers, kept and maintained in each of said elevators an operator to manage, control, and operate said elevator to enable passengers thereon to be carried with safety as was the duty of defendants toward the plaintiff and other persons using said elevators, but that defendants failed and neglected to have an operator in charge of said elevator on the said day when she took passage thereon and received her injuries. "That said elevator was run and operated by a hydraulic machine, and...