Daniel v. Artesian Ice & Cold Storage Co.

• Decision Date: 07 December 1931
• Docket Number: No. 17146.,17146.
• Citation: 45 S.W.2d 548
• Court: Missouri Court of Appeals
• Parties: DANIEL v. ARTESIAN ICE & COLD STORAGE CO.

45 S.W.2d 548

DANIEL v. ARTESIAN ICE & COLD STORAGE CO.

No. 17146.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Rehearing Denied January 11, 1932.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Eugenia Daniel, by next friend, against the Artesian Ice & Cold Storage Company. From judgment for plaintiff, defendant appeals.

Reversed and remanded.

Culver, Phillip & Voorhees, of St. Joseph, for appellant.

Mytton, Parkinson & Norris, of St. Joseph, for respondent.

BOYER, C.

This is a suit to recover damages for personal injuries sustained by the plaintiff, when on an open freight elevator in the defendant's plant, on account of the alleged negligence of defendant's servant. Plaintiff had a verdict and judgment, and defendant duly appealed. The errors assigned and the points now up for consideration are: (1) The court erred in refusing a demurrer to the evidence. (2) The court erred in giving plaintiff's instruction 1. The petition alleged different theories of liability, but the case was submitted to the jury upon the theory evidenced by instruction 1, given at the instance of plaintiff. The instruction is directly involved in the argument pertaining to the demurrer as well as in the point that it is erroneous, and we therefore copy it in full.

"The court instructs the jury that if you find and believe from the evidence that on the 14th day of June, 1928, the elevator mentioned in evidence was stationary below the fourth floor of the building mentioned in evidence, and you further find from the evidence that plaintiff was upon said elevator at said time with her right foot extending over the east edge of said elevator; and you further find from the evidence that the operation of said elevator from said stationary position in an upward direction was dangerous and hazardous and likely to injure the plaintiff in said position, if you so find; and you further find from the evidence that the plaintiff was in a position of immient peril of being injured by the movement of said elevator in an upward direction, and did not know and could not anticipate that said elevator would be moved upward at said time; and you further find from the evidence that the defendant company and its agent and servant, Fred Segessman, knew that the plaintiff was upon said elevator with her right foot extending over the east edge of same, and that the said elevator was stationary below the fourth floor thereof, and that plaintiff was in a dangerous and hazardous position, provided you so find, and in a position of imminent peril of being injured by the movement of said elevator in an upward direction, provided you so find, and you further find from the evidence that the witness Segessman, while acting within the scope of his employment and in the work of putting the plaintiff off of said elevator negligently and in utter disregard of plaintiff's safety, suddenly operated said elevator so as to cause the same to move in an upward direction and thereby cause the plaintiff's right leg to be caught between the elevator and the shaft and floor and be thereby injured, then your verdict will be for the plaintiff."

In reference to the demurrer, it is urged that there was no evidence to show that defendant's servant actually knew of the perilous position of plaintiff; that the case was submitted to the jury upon an issue not contained in the petition; that the issues were broadened or changed, and there was no evidence to prove the charge of negligence in the petition, and there was no evidence that defendant actually knew the fact upon which liability was predicated in the instruction. Appellant argues that the charge in the petition is that "plaintiff was in a position of imminent peril in being upon said elevator while the same was being operated by other persons and herself"; and that defendant's "agents and servants knew of her said dangerous position upon said elevator"; and says that the case was submitted on the theory, and the jury was required to find, "that plaintiff was upon said elevator at said time with her right foot extending over the east edge of the elevator"; and that the operation of the elevator was dangerous and likely to injure the plaintiff "in that position" and that defendant's servant "knew that plaintiff was upon said elevator with her right foot extending over the east edge of the same."

It is insisted that plaintiff was not entitled to go to the jury on that theory because it was not within the pleadings; that there is no evidence that defendant's servant actually knew that plaintiff was upon the elevator with her right foot extending over the east edge thereof; that there is no evidence to show that the elevator was started with great suddenness or was caused to be rapidly moved or jerked; and that there is no evidence to show that defendant's servant was acting within the scope of his employment and upon the business of the master in moving the elevator to release plaintiff. For convenience and clarity, we set out the following paragraphs of the petition.

"Plaintiff further states that the operation and movement of said elevator in carrying children up and down said shaft, when operated by employes and when operated by children themselves, was dangerous and unsafe and placed children in imminent peril of being injured with riding thereon. * * *

"Plaintiff further states that on the 14th day of June, 1928, she was an infant of tender years, to-wit: thirteen years of age, and that she was requested and invited by the defendant company and its employes to operate said elevator in taking employes up and down in the same, and got upon said elevator and was upon said elevator with the knowledge and consent and direction and request of the defendant and its agents and servants, and while upon said elevator the defendant company and its agents and servants, knowing plaintiff was upon said elevator and that the movement of the same was dangerous and hazardous and likely to injure the plaintiff by reason of her tender years, and the construction of said elevator, and that she was in a position of imminent peril in being upon said elevator while the same was being operated by other persons and herself, so carelessly and negligently held the rope or cable which controls the movement of said elevator, and so carelessly and negligently and in utter disregard of the plaintiff's safety released said rope while plaintiff was upon said elevator and attempting to run the same, as to cause the elevator to be started with great suddenness, then and thereby causing the plaintiff's right limb and leg to be caught between said elevator and the parts of the shaft, then and thereby fracturing the bones of plaintiff's right leg below the knee, etc. (Here follow the injuries alleged.) * * *

"Plaintiff further states that the defendant and its agents and servants knew the facts hereinabove set forth, and carelessly and negligently permitted and directed the plaintiff to ride upon said elevator without warning her of the danger of riding upon the same and operating the same, and negligently operated said elevator in a dangerous manner in that said elevator was caused to be rapidly moved or jerked by reason of the negligence of the defendant and its agents and servants, and that by reason thereof, the plaintiff, riding upon said elevator, was likely to catch her limbs in said elevator and be injured thereby.

"Plaintiff further states that as the plaintiff was upon said elevator, and as the defendant and its agents and servants knew of her said dangerous position upon said elevator, and that she was likely to be caught between the elevator and the shaft and its parts and be greatly injured, negligently permitted and directed and requested the plaintiff to ride upon said elevator, and that by the exercise of ordinary care on the part of the defendant and its agents and servants, the injury to the plaintiff could have been prevented, and that while riding upon said elevator and because of said negligent acts of the defendant and its agents and servants, and each of said acts and as a direct result thereof, the plaintiff was caught by the motion of said elevator and injured." * * *

The answer was a general denial with a plea of contributory negligence, in that the plaintiff negligently entered the plant and elevator without defendant's knowledge and against its will, and negligently went upon and remained upon said elevator without taking any precaution for her own safety, and without using any care to prevent her leg and body from extending outside the elevator, or to avoid being injured while upon it. We will make such reference to the evidence as is deemed necessary.

Defendant maintained and operated an ice manufacturing and cold storage plant fronting west on Main street in St. Joseph, Mo. As an incident to its business, it sold and delivered ice to individual customers from a dock in front of one part of its buildings. The dock was about 2 feet 5 inches high, 15 feet wide, extending north and south in front of the building, and occupied all of the sidewalk space, and formed the sidewalk between the building and the street curb. Near the door from which ice was delivered and near the center of the dock, there was an entrance about 8 feet wide which led directly onto a freight elevator used to carry fruit and vegetables to cold storage rooms. The elevator consisted merely of a platform; its dimensions were about 8 feet, north and south, by 9 feet, east and west. The elevator carriage was not inclosed on the east or west side. It moved in a shaft from the ground floor to the fourth floor. It was put in operation by the use of two hand cables, one in the northeast corner and one in the northwest corner of the elevator. The pulling or lifting cable made contact with a switch in a motor located on top of the building where the power was applied; a slight pull...