Dunlap v. Mallinckrodt Chemical Works
| Citation | 139 S.W. 828,159 Mo.App. 49 |
| Parties | HARRIET P. DUNLAP, Respondent, v. MALLINCKRODT CHEMICAL WORKS, Appellant |
| Decision Date | 15 July 1911 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
Judgment affirmed.
Barclay Fauntleroy & Cullen for appellant.
(1) The ordinance does not require the operator or operators to ride upon the elevator; there is no evidence that those who operated it were not qualified in all respects as the ordinance requires. There was no proof of any failure to obey the ordinance, as such law has been construed by the Supreme Court. The burden of proof on these points was on plaintiff and it was never discharged. Purcell v. Shoe Co., 187 Mo. 276. (2) No connection, direct or remote, is proved between any act for which defendant is answerable and the fatal accident. Without such proof, defendant is not liable. Purcell v. Shoe Co., 187 Mo. 276; Davis v. Coal Co., 209 Pa. 153; Borck v. Bolt Works, 111 Mich. 129. Breach of an ordinance creates a liability "if the violation of the municipal law caused or contributed to the personal injury," but not otherwise. Channon Co. v. Hahn, 189 Ill. 32. In Missouri, this is a familiar and elemental rule in the law of this subject. Kelley v. Railroad, 75 Mo. 138; Holman v Railroad, 62 Mo. 562; Evans v. Railroad, 17 Mo.App. 624; Wallace v. Railroad, 74 Mo. 594; Stoneman v. Railroad, 58 Mo. 503. (3) The elevator was said to be "slow" of speed; but there was no evidence of its rate of progress in feet or otherwise; no evidence of its rate at the time of the accident; none as to the space or time necessary to stop it then or at any time. Had an operator been aboard when Dunlap was caught we have nothing in the evidence to show that the accident could have been averted by the utmost diligence, within the three or four feet the elevator ran after he jumped. Hence no causal connection is proven between any want of an operator on the elevator and the death of decedent, although the ordinance does not require the operator to be on the elevator. Hence, on the issue of defendant's alleged fault, there is a total failure of proof. Stagg v. Tea Co., 169 Mo. 489; Purcell v. Shoe Co., 187 Mo. 276; Harlan v. Railroad, 18 Mo.App. 483; Ubelmann v. Ice Co., 209 Pa. 398; Hill v. Co., 188 Mass. 75. There is, however, no "humanitarian rule" pleaded, and hence it is not available. Grout v. Railroad, 125 Mo.App. 552. (4) If the ordinance is correctly interpreted to mean that some "one or more particular persons" must be employed to run this elevator, the ordinance would be unreasonable and void, as imposing an unnecessary embargo on the business of defendant touching the use of its property. City v. Withaupt, 61 Mo.App. 275; Corrigan v. Gage, 68 Mo. 541; Riley v. Cape Girardeau, 72 Mo. 220. If (as we do not believe) the ordinance forbids the occasional use of a freight elevator, in the manner shown by the evidence in this case, prior to the voluntary exposure of the decedent to an unexpected risk, then we claim the ordinance would be void because unreasonable. (5) The act of the decedent directly contributed to his injury and death, and precludes recovery by plaintiff. George v. Mfg. Co., 159 Mo. 333; Am. Linseed Co. v. Heins, 141 F. 45; Cullen v. Higgins, 216 Ill. 78; O'Brien v. Steel Co., 100 Mo. 183; Knox v. Power Co., 69 Hun 231; Hoehman v. Moss Co., 4 Misc. 160; Railroad v. Warren, 149 F. 658; Shumate v. Railroad, 158 F. 901; Ramsdell v. Jordan, 168 Mass. 505; Knapp v. Jones, 50 Neb. 490; Guichard v. New, 9 A.D. 485; Man v. Morse, 3 Colo.App. 359. Where the employee, with knowledge of the facts and of the danger, does an act of his own volition which contributes to his injury, he cannot recover. Gallagher v. Snellenburg, 210 Pa. 642; Railroad v. Dewees, 153 F. 56; Beidler v. Brandshaw, 200 Ill. 425; Burns v. Chem. Co., 65 A.D. 424. The elevator was intended for freight only; and it was a trespass to use it otherwise; especially on the part of the manager of the building whose duty required him to enforce the orders on the signs, and to obey them personally. Ball v. Hauser, 129 Mich. 397; McCarty v. Foster, 156 Mass. 511; Sievers v. Box Co., 50 N.E. 877; Wise v. Ackerman, 76 Md. 376. (6) It was fatal contributory negligence in decedent to put himself into the place of danger where he was injured, when he was fully aware of the hazards arising from the mode of operating the elevator. Freeman v. Mill Co., 70 Hun 530; Taylor v. Mfg. Co., 143 Mass. 470; Dieboldt v. Baking Co., 72 Hun 403; Headford v. Mfg. Co., 23 Ont. Rep. 335; Omaha Co. v. Sanduski, 155 F. 897; Russ v. Co., 110 Iowa 743; Juchatz v. Co., 120 Mich. 654; Hoard v. Mfg. Co., 177 Mass. 69; Butler v. Frazee, 211 U.S. 459; Am. Co. v. Heins, 141 F. 45; Railroad v. Wilhoit, 160 F. 440; Fed. Co. v. Swyers, 161 F. 687; U.S. Smelt Co. v. Parry, 166 F. 407; Mooney v. Carter, 152 F. 147; Lumber Co. v. Brandvold, 141 F. 919. (7) The evidence shows that decedent could safely have used the stairway to return to the second floor, but he chose the more dangerous way of trying to jump on the rising elevator. Such choice of a dangerous way, when a safer was open, is of itself negligence in law and defeats recovery. Smith v. Box Co., 193 Mo. 715; Moore v. Railroad, 146 Mo. 582; 1 Bailey, Personal Inj., M. and S., sec. 1121; Crookston Co. v. Boutin, 149 F. 680. (8) The disregard by decedent of the order of defendant (by the signs) as to the manner of using the elevator, is a bar to this action. Matthews v. Railroad, 126 S.W. 1005; Railroad v. Reagan, 96 Tenn. 128; Railroad v. Collier, 157 F. 347; Ingram v. Taylor, 73 A.D. 129; Railroad v. Craig, 80 F. 495; Wolsey v. Railroad, 33 Ohio St. 229; Rittenhouse v. Railroad, 120 N.C. 547. (9) Getting on a moving elevated train and the act of decedent here are closely alike in nature, and each indicates an assumption of the risk involved thereby. Tobin v. Railroad, 211 Pa. 457; Carroll v. Transit Co., 107 Mo. 653. (10) The court erred in not directing a verdict for defendant as the plaintiff's own evidence and all fair inferences therefrom disclose no cause of action; and judgment should have been entered for defendant. Purcell v. Shoe Co., 187 Mo. 276; Matthews v. Railroad, 126 S.W. 1005; Nolan v. Shickle, 69 Mo. 336.
Pearce, Davis & Curlee for respondent.
(1) Breach of municipal ordinance gives rise to right of action by party injured thereby. Sluder v. Transit Co., 189 Mo. 107. (2) Habitual disregard of the posted rule prohibiting the use of the elevator except for freight only gives rise to a presumption that the rule was waived by the master. Francis v. Railroad, 127 Mo. 658; Barry v. Railroad, 98 Mo. 62. (3) Failure to have an elevator operative employed was a violation of the ordinance, and the question of causal connection or proximate cause was one for the jury. H. Channon Co. v. Hahn, 189 Ill. 28; Dallemand v. Saalfeldt, 175 Ill. 310. (4) Violation of the ordinance and injury being shown, there is a presumption that the one caused the other. Schlereth v. Railroad, 96 Mo. 509; Hanlon v. Railroad, 104 Mo. 381. (5) Contributory negligence being an affirmative defense, must be proven by defendant, and cannot be left to conjecture. Weller v. Railroad, 120 Mo. 635; Buesching v. Gas Light Co., 73 Mo. 219; Schultz v. Moon, 33 Mo.App. 329. (6) The servant does not assume any risk arising from the master's negligence or his failure to comply with the requirements of law. Obermeyer v. Chair Mfg. Co., 120 Mo.App. 59; Affirmed 229 Mo. 97; Wendler v. House Furnishing Co., 165 Mo. 527; Blair v. Hebel, 103 Mo.App. 621; Durant v. Lexington Coal Co., 97 Mo. 62; Jewel v. K. C., etc. Co., 132 S.W. 703.
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. 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 his 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 a passenger elevator as well, by the employees 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 employees 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 said before 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...
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