Ebert v. A. J. Kasper Co.

• Decision Date: 30 April 1934
• Parties: ARLEY EBERT, RESPONDENT, v. A. J. KASPER COMPANY, APPELLANT
• Court: Kansas Court of Appeals

71 S.W.2d 859

228 Mo.App. 589

ARLEY EBERT, RESPONDENT, v. A. J. KASPER COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

April 30, 1934

Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

AFFIRMED.

Judgment affirmed.

W. W McCanles for respondent.

German & German for appellant.

CAMPBELL C. Reynolds, C., concurs.

OPINION

CAMPBELL, C.--

Plaintiff, eighteen years of age, was, on April 4, 1927, employed by the defendant as its "handy man" in its wholesale house in Kansas City. The three-story building in which defendant carried on its business was leased to it about two months prior to the time plaintiff became its employee. A freight elevator which had been installed in the building many years before defendant leased the premises was used in carrying freight between the floors. The elevator, the platform of which was approximately five feet square, was operated by means of a cable. There was a gate at the elevator shaft on each floor at the front of the elevator which could be raised and lowered by the one operating the elevator. On May 5, 1927, plaintiff placed a drum of coffee on the elevator intending to take it from the first floor to the third floor of the building. He entered the elevator, put it in motion by pulling the control cable, and sat down upon the drum of coffee. When near the third floor he stepped toward the front of the elevator. In relating this circumstance, plaintiff testified:

"And I reached out with my hands like this (indicating), to push that gate up as I went, just as a time saving feature. In doing so, these grooves were oiled to a certain extent, but not very much. Of course, that thing was heavy to lift. When I pushed it up that way, just used myself as a brace, pushed it up and in so doing stepped a little bit too close to the edge."

Plaintiff's right foot was caught and jammed between the elevator and the third floor, resulting in the loss of his great toe and injury to his second toe.

There was a clearance of one-half inch between the elevator floor and the floors in the building. An expert witness testified that a freight elevator "that didn't have an enclosure on it to keep anybody from stepping off, it should have the protection of a toe guard that should push anything off by there."

"Q. What is a toe board and the use of it? A. There are two types of them. Some have them at the bottom where it starts up from the ceiling, slanting. It comes out about four inches, about forty-five degrees. . . . Other types of construction have them up at the top of the floor where you land, maybe that much in height (indicating), and have them sloping or at angle of forty-five degrees. Any time anybody coming up in an elevator that has no protection to keep anybody from putting their foot over there as it comes up, this little projection there tends to push the foot off, or the object, if it happens to be there."

After the accident plaintiff and defendant agreed that the latter would pay the former as though the injury was compensable under the Workmen's Compensation Law. Pursuant to the agreement defendant paid to the plaintiff sums totalling $ 416.13 and also medical aid in the amount of $ 315.33. On February 21, 1928, plaintiff, through his next friend, brought this suit, a common law action to recover damages for the injuries which he sustained. He obtained a judgment in the sum of $ 1800, from which the defendant has appealed.

The petition alleged three grounds of negligence; the first passed out of the case, the others follow:

"(b) In that the said defendant caused, allowed and permitted the floor of said elevator to be built so that in passing the ceiling of the second floor and coming to the third floor, said floor of said elevator was in such close proximity to the aforesaid described floor that there was not sufficient space to prevent cutting off and injuring the plaintiff's toe as aforesaid. That the floor of the elevator was so close to the third floor where it passed through same that there was not one-sixteenth of an inch clearance.

"(c) In that the said defendant so constructed the elevator, as aforesaid, that the floor when passing through the space at the third floor of the defendant's plant came so near to the wooded part of the floor of the third story that it left only a clearance of one-sixteenth or one-thirty-second of an inch, which was dangerous, and of which the defendant was well aware, but the defendant did not warn the plaintiff of said dangerous condition, and as result thereof plaintiff caught his toe therein and was injured."

The defendant objected to the evidence tending to show that the absence of toe guard rendered the elevator not reasonably safe on the ground that such negligence was not pleaded. At the close of the evidence the plaintiff obtained leave to amend his petition so as to make paragraphs (b) and (c) read as follows:

"In that the said defendant caused, allowed and permitted the floor of said elevator to be built so that in passing the ceiling of the second floor and coming to the third floor, said floor was in such close proximity to the aforesaid described floor that there was not sufficient space to prevent cutting off and injuring the plaintiff's toe as aforesaid. That the floor of the elevator was so close to the third floor where it passed through same that there was not one-sixteenth of an inch clearance. And that notwithstanding the fact that there was a clearance of only one-half inch, the defendant did not provide or equip said elevator or shaft with a toe board or guard to prevent his getting his foot caught as aforesaid.

"(c) In that the said defendant so maintained the elevator, as aforesaid, that the floor thereof when passing through the space at the third floor of the defendant's plant, came so near to the wooded part of the third story that it left only a clearance of one-sixteenth or one-thirty-second of an inch, and did not equip said elevator or shaft with a toe board or guard, which was dangerous, and of which the defendant was well aware, but the defendant did not warn the plaintiff of said dangerous condition, and as result thereof plaintiff caught his toe therein and was injured."

The defendant assigns error to the action of the court in refusing to direct verdict in its favor. In support of this insistence the defendant says: (1) No negligence on its part was shown; (2) that plaintiff was guilty of contributory negligence, and (3) that the Workmen's Compensation Law controls.

There was substantial evidence that it was customary to maintain toe boards or guards in elevators such as the one here involved and that the failure to provide such a guard rendered the elevator unsafe. This was sufficient to show negligence on the part of the defendant. [Martin v. Kline Apparel Co., 249 S.W. 965; Birdsong v. Jones, 30 S.W.2d 1094.]

Moreover one of the defenses was that a toe board was maintained in each floor. Thus, defendant recognized that it was its duty to maintain the guard which the plaintiff says it did not maintain. [Bachman v. Q. O. & K. C. R. R. Co., 274 S.W. 764, 767....