Dunlap v. Mallinckrodt Chemical Works

• Decision Date: 15 July 1911
• Citation: 139 S.W. 828,159 Mo. App. 49
• Parties: DUNLAP v. MALLINCKRODT CHEMICAL WORKS.
• Court: Missouri Court of Appeals

139 S.W. 828

159 Mo. A. 49

DUNLAP v. MALLINCKRODT CHEMICAL WORKS.

St. Louis Court of Appeals. Missouri.

July 15, 1911.

Rehearing Denied September 30, 1911.

1. MASTER AND SERVANT (§ 137) — METHODS OF WORK — ORDINANCE — OPERATION OF ELEVATOR.

A city ordinance which requires the users of all power elevators to employ a competent person, not less than 16 years of age, to operate them, is sufficiently complied with by keeping a competent operator over 16 years of age, specially charged with the duty of operating the elevator, on the separate floors of a building, and does not require such operator to be at all times on the elevator.

2. MASTER AND SERVANT (§ 285) — ACTION FOR INJURIES — QUESTION FOR JURY — FAILURE TO OBSERVE ORDINANCE.

In an action for the wrongful death of an employé, crushed in an elevator, held, on the evidence, that whether the defendant's failure to comply with an ordinance requiring the employment of competent elevator operators was the proximate cause of death was for the jury.

3. MASTER AND SERVANT (§ 243) — METHODS OF WORK — RULES — WAIVER.

Where defendant in an action for wrongful death operated an elevator in its buildings, and posted notices that the elevator was not to be used except as a freight elevator, but it was shown that it had been constantly used by employés as a passenger conveyance with the permission of defendant's officers, the rule is waived by defendant, and can avail nothing on the plea of contributory negligence.

4. MASTER AND SERVANT (§ 289) — CONTRIBUTORY NEGLIGENCE — ENTERING AND STARTING ELEVATOR.

It is not negligence as a matter of law for a servant to enter an elevator, which is run upon signals by other employés and without a special operator, at the instant of its first movement in response to a signal.

5. MASTER AND SERVANT (§ 265) — ACTION — PRESUMPTION.

In the absence of proof to the contrary, there is a presumption that an employé at the time of entering an elevator conducted himself with ordinary care for his safety.

6. MASTER AND SERVANT (§ 289) — ACTION — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action for the wrongful death of an employé, crushed by an elevator, held on the evidence that the question of the employé's negligence was for the jury.

7. TRIAL (§ 140) — QUESTION OF FACT — CREDIBILITY OF WITNESS.

Where defendant in a personal injury action offers evidence of plaintiff's contributory negligence, and no facts or circumstances appear to discredit the evidence, the credibility of the witnesses giving such evidence is nevertheless for the jury.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Harriet P. Dunlap against the Mallinckrodt Chemical Works. Judgment for plaintiff, and defendant appeals. Affirmed.

Barclay, Fauntleroy & Cullen, for appellant. Frank M. Curlee, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the death of her husband through the alleged negligent wrongful act of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant, incorporated, is a manufacturing chemist in the city of St. Louis, and plaintiff's husband was in its employ at the time of his death as a chemist. Mr. Dunlap, plaintiff's husband, came to his death through being crushed between the floor of an elevator and the beam over the entrance thereto in defendant's establishment. The elevator which occasioned such injury and death was maintained by defendant between what is known as its morphine and cocaine buildings, and was entered from either building. The two buildings referred to are four or five stories in height, and the elevator communicates with each floor. The particular elevator involved here was designed originally for carrying freight and parcels from one floor to another, but was continuously used as well as a passenger elevator by the employés of defendant. The elevator was operated by electric power, and those who desired to use it entered therein, and pulled a rope which started the carriage in motion. It appears that no particular person or persons were employed by defendant to operate the elevator, and that it was moved from floor to floor by any one of the employés who desired to use it. When one desired to employ the elevator for any purpose, he first, upon approaching it, pressed a button which sounded a bell. If the elevator were in use by another person at the time, such person would halloo, and the party desiring to use it would wait his turn. This arrangement and custom prevailed to the end of preventing conflict in the use of the elevator by persons on the different floors. It seems that the elevator, operated as before said by electric power, passed up and down the shaft unattended by a regular operator in obedience to a rope under the hand of a person desiring to move it, situate on any floor of the building. If perchance the elevator was at the bottom on the first floor, and an employé on the fourth floor desired to use it at the fourth floor, he would reach within the shaft and pull down on the rope which operated perpendicularly in the northwest corner of the elevator shaft. By thus pulling down on the rope the power would be communicated so as to pass the elevator upward until it was stopped by readjustment of the rope which disconnected the power. If the elevator was to be retained at any particular floor for service such as loading or unloading, a clutch annexed thereto was brought into play, and made it fast at the place desired, so that one on another floor would be unable to remove it by pulling the rope. Though this be, in a general way, descriptive of the manner of operating the elevator involved here, it was constantly enjoined upon every one about the works that, before the elevator should be moved at any time, the electric bell must first be sounded, to the end of ascertaining whether another was using it, and this signal every one understood.

The direct proof as to how plaintiff's husband came to his death is meager as no one witnessed the occurrence. It appears plaintiff's husband was a young man about 32 years of age, and he had charge of the morphine building under Dr. Lamar, defendant's superior officer. Mr. Dunlap had been engaged in a conversation with one of defendant's employés on the first floor of the building not far from the elevator, and left him, presumably to return to his office on the second floor. The employé with whom decedent had been in conversation says that but a moment after Mr. Dunlap left him he heard a cry from the elevator as though some one were injured, and it proved to be Mr. Dunlap. About the time Mr. Dunlap entered the elevator on the first floor, Mr. Tompkins, an employé of defendant, on the third floor, sounded the electric bell, and, hearing no answer thereto, applied the power which caused it to ascend. Though no one saw him enter the elevator, Mr. Dunlap did so from the east side thereof on the first floor, and, as it arose, he was crushed between the floor of the elevator and a beam adjacent over the entrance thereto. It is not shown how fast this elevator moves, but the evidence is that it proceeds slowly, and Mr. Dunlap came to his injury when the floor of the...