Dobson v. Elevator Co.

• Decision Date: 07 April 1930
• Docket Number: No. 28449.,No. 28450.,28449.,28450.
• Parties: RUBY DOBSON v. OTIS ELEVATOR COMPANY, Appellant. RUBY DOBSON v. LUCKS-ORWIG-LEROI, INC., Appellant.
• Court: Missouri Supreme Court

26 S.W.2d 942

RUBY DOBSON v. OTIS ELEVATOR COMPANY, Appellant. RUBY DOBSON v. LUCKS-ORWIG-LEROI, INC., Appellant.

No. 28449.

No. 28450.

Supreme Court of Missouri.

Division Two, April 7, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Henry A. Hamilton, Judge.

AFFIRMED.

Jones, Hocker, Sullivan & Angert for appellant, Otis Elevator Company.

(1) The obligation of the Otis Company was merely to use ordinary care in the execution of the work. Bell v. Kidd, 63 S.E. 608; Roddy v. Railway Co., 104 Mo. 244; Young v. Waters-Pierce Co., 185 Mo. 634; Sykes v. Railway Co., 175 Mo. 693; Fassbinder v. Railway Co., 126 Mo. App. 563; Lofty v. Lynch-McDonald Co., 215 Mo. App. 163; Howard v. Plumbing Co., 70 S.E. 286. (2) Statements to and promises of an agent do not bind the principal as to matters outside the employment. Walker v. Railway Co., 121 Mo. 575; Hickman v. Green, 123 Mo. 174; State ex rel. v. Allen, 303 Mo. 616; Wright v. Casualty Co., 229 S.W. 440. (3) The plaintiff cannot sue upon any undertakings of the Otis Company with the Lucks Company. Roddy v. Railway Co., 104 Mo. 244.

T.M. Pierce and Samuel H. Liberman for appellant, Lucks-Orwig-Leroi, Inc.

(1) Since there was no evidence that defendant Lucks-Orwig knew, or in the exercise of ordinary care should have known, that the elevator had been left in a dangerous condition by Otis Company, the court should have directed a verdict for defendant Lucks-Orwig. Gibson v. Railroad, 46 Mo. 163; Elliott v. Railroad, 67 Mo. 272; Haggard v. Coal Co. (Mo.), 200 S.W. 1072; Manche v. Basket & Box Co. (Mo.), 262 S.W. 1021; Winslow v. Ry. Co. (Mo. App.), 192 S.W. 121. (2) Lucks-Orwig was not liable for the acts or omissions of Otis Company, and the court therefore erred in refusing to give Instructions K, L and N, offered by Lucks-Orwig. O'Hara v. Gas Light Co., 244 Mo. 395; Independence v. Slack, 134 Mo. 66; McGrath v. St. Louis, 215 Mo. 191; Morgan v. Bowman, 22 Mo. 538; Barry v. St. Louis, 17 Mo. 121. (3) An employee may not recover against an employer for injuries sustained as the result of violation of rules or orders given by the employer. It was therefore error to refuse Instruction J. Matthews v. Railroad Co., 227 Mo. 241; Yoakum v. Lusk (Mo.), 223 S.W. 53; Francis v. Railroad, 127 Mo. 658; Schaub v. Railroad, 106 Mo. 74; Royalty v. Lusk (Mo. App.), 198 S.W. 473. (4) The damages are excessive. Parks v. United Railways (Mo.), 235 S.W. 1067; Crocket v. Railways Co. (Mo.), 243 S.W. 902; Simon v. Brass Mfg. Co. (Mo.), 250 S.W. 74; Williams v. Railroad Co. (Mo.), 175 S.W. 901; Mahmet v. Radiator Co. (Mo.), 294 S.W. 1014.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

(1) The court properly overruled the demurrer to the evidence offered by appellant Otis Elevator Company. (a) The evidence showed that appellant undertook to make certain changes and repairs to the elevator in the premises of respondent's employer, and at the close of the day's work, left the elevator in such condition that the car would fall if a number of persons got upon it, although appellant knew that the employees used the elevator. The car was not fastened, nor was it barricaded or otherwise protected by the defendant's employees. Under such circumstances, appellant is liable to plaintiff for her injury, in the manner shown by the evidence. Harriman v. Stowe, 57 Mo. 93; Lottman v. Barnett, 62 Mo. 159; Carson v. Quinn, 127 Mo. App. 525; Orcutt v. Building Co., 201 Mo. 424; Appel v. Eaton etc. Co., 97 Mo. App. 428; O'Neil v. Oil Co., 231 Mass. 20; Fox v. Hotel Co. (Tex.), 240 S.W. 520; Gibbons v. Adams, 179 Ill. App. 12. (b) The negligent failure of respondent's employer, Lucks-Orwig-Leroi, Inc., to warn or inform plaintiff of the dangerous condition of the elevator, known to the employer, does not absolve the Otis Company from liability for its negligence, and cannot be imputed to plaintiff so as to defeat her action. Leahy v. Oil Co., 224 Mass. 352; American C. Co. v. Elec. Lt. Co., 230 N.Y. 199; Gulf etc. Railroad Co. v. Barner, 94 Miss. 484; Dean v. Railroad, 65 Ind. App. 225; Robertson v. Fuel Co., 218 Mich. 271; Martin v. Algona, 40 Iowa, 390; St. L. etc. Railroad Co. v. Dawson, 30 Tex. Civ. App. 260. (c) Notice to Thompson, the only representative of the Otis Elevator Company with whom the Lucks-Orwig-Leroi Company dealt with respect to the work in question, was notice to the Elevator Company. Information given him and statements made by him while conducting his business for his employer was binding on his employer. Bergman v. Railroad, 104 Mo. 77; Phillips v. Railroad, 211 Mo. 419; Johnson v. Ice Co., 143 Mo. App. 453; Dean v. Railroad, 148 Mo. App. 449; Levi & Co. v. Railroad, 157 Mo. App. 545. (2) The court did not err in admitting in evidence the testimony of Settledge with respect to the conversation between him and Thompson, the appellant's representative. Said statements were admissible in evidence. Authorities, Point 1 (c) supra. No objection was made to said statements below. Boulicault v. Glass Co., 283 Mo. 237. (3) The court properly overruled the demurrer to the evidence, and submitted the case to the jury, as to the appellant Lucks-Orwig-Leroi, Inc. (a) In passing upon the demurrer to the evidence, it was the duty of the court to accept as true all evidence tending to support plaintiff's case, and to give plaintiff the benefit of all inferences which the jury, with any degree of propriety, could have drawn in her favor. Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gas Light Co., 73 Mo. 219; Gratoit v. Railroad, 116 Mo. 466; Scherer v. Bryant, 273 Mo. 602. (b) The jury had the undoubted right to believe all of the testimony of any witness or none of it, or to accept it in part or reject it in part, as the jury might find the same to be true or false when considered in relation to the other testimony and the facts and circumstances in the case. Anderson v. Davis, 314 Mo. 515; Gould v. Railroad, 315 Mo. 713; Maginnis v. Railroad, 268 Mo. 667; Phelan v. Paving Co., 227 Mo. 711; Knorpp v. Wagner, 195 Mo. 637. (c) It was the right of the jury to find, from the evidence that, although appellant's secretary had been notified that the elevator would be taken out of commission immediately after noon of the day of the accident, and would be unsafe for use for two or three days, he failed to warn or notify the employees working on the fifth floor, including plaintiff, of this fact, and took no measures whatever to protect them from the danger. The appellant was liable for the negligence of its secretary in failing to warn the plaintiff. Johnson v. Coal Co. (Mo.), 205 S.W. 615; Koerner v. Car Co., 209 Mo. 157; Hutchinson v. Gate Co., 247 Mo. 115. It was also liable for its failure to perform its continuing and non-delegable duty to keep the place of plaintiff's work, including the means of ingress and egress, in a reasonably safe condition. Jackson v. Butler, 249 Mo. 342; Clark v. Fdry. Co., 234 Mo. 436; Burns v. Railroad, 129 Mo. 56; Greenstein v. Iron Co., 178 S.W. 1181; Clark v. Const. Co., 204 S.W. 65; Herdler v. Range Co., 136 Mo. 3; Schleef v. Schoen, 216 Mo. App. 499. (4) The court properly refused appellant's requested Instruction J. (a) It was shown without dispute, by the witnesses of both plaintiff and the appellant, that the alleged order to the women, not to use elevator unless it was operated by the shipping clerk, was never observed, but, on the contrary, the constant practice was for the women on the fifth floor to use the elevator and operate it themselves, and that this was done in the presence and with the concurrence of their forelady. There was no evidence to sustain the requested instruction. Barry v. Railroad, 98 Mo. 69; Brady v. Railroad, 206 Mo. 509; Yost v. Railroad, 245 Mo. 219; Finnegan v. Railroad, 261 Mo. 481; 5 Thompson on Negligence, sec. 5404. (b) The defense was fully covered by appellant's given Instruction 3. Rutledge v. Swinney, 261 Mo. 128; Johnson v. Ice Co., 143 Mo. App. 458. (5) The award of damages was not excessive. (a) The evidence on this subject should be taken in its light most favorable to plaintiff, all conflicts being conclusively settled by the jury's verdict. Manley v. Wells (Mo.), 292 S.W. 67; Busby v. Tel. Co. (Mo.), 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325; Deland v. Cameron, 112 Mo. App. 710; Tucker v. Kollias (Mo. App.), 16 S.W. (2d) 649. (b) It is not the province of an appellate court, in any jury case, to weigh conflicting testimony. Gannon v. Gas Co., 145 Mo. 502; Reid v. Ins. Co., 58 Mo. 421; Daniel v. Pryor (Mo.), 227 S.W. 104; Holzemer v. Ry. Co., 261 Mo. 411. (c) It was the peculiar province of the jury to determine the extent of plaintiff's injuries and the compensation she was entitled to recover therefor. Hoover v. Ry. (Mo.), 227 S.W. 79; Maloney v. U. Rys. Co. (Mo.), 237 S.W. 516; Sacre v. Ry. Co. (Mo.), 260 S.W. 88. (d) An appellate court will not interfere with the award of damages unless the amount is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias. Manley v. Wells, supra; Laughlin v. Rys. Co., 275 Mo. 459; Grott v. Shoe Co., 2 S.W. (2d) 785.

WHITE, J.

This is one case with two appeals. The plaintiff recovered judgment against both defendants in the sum of $17,000 for personal injuries. The trial court overruled a motion for new trial on condition that the plaintiff remit $4,000. The remittitur was entered, the motion was overruled, and each defendant appealed.

The Lucks-Orwig-Leroi, Inc., appellant, occupied five floors of a building. It was called a decorating company. The plaintiff was employed by it to do sewing on draperies, bed spreads, carpets and the like. She worked on the fifth floor of the building. A passenger elevator ran up to the fourth floor and no further. A freight elevator ran all the way to the fifth floor. About a dozen employees...