Fierce v. Shapleigh Hardware Co.
| Decision Date | 05 March 1929 |
| Docket Number | No. 20582.,20582. |
| Citation | 14 S.W.2d 511 |
| Parties | FIERCE v. SHAPLEIGH HARDWARE CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.
"Not to be officially published."
Action by John W. Fierce against the Shapleigh Hardware Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
Felix Cornitius, of St. Louis, for appellant.
Gillespie & Dempsey and Emmett Golden, all of St. Louis, for respondent.
This was an action brought in the circuit court to recover damages for personal injuries upon which a verdict and judgment of $7,200 was recovered by the plaintiff. The amended petition alleges that the plaintiff, an employé of an elevator company, was sent to the place of business of the defendant to repair a freight elevator by placing new drum weight cables in place of those in use; that certain parts of the elevator are known as car-balance weights and drum weights, and as new cables were to be attached to the drum weights, it was necessary to place a wooden block between the car-balance weight and the drum weight so that the car-balance weight would not come down on the drum weight; that while said elevator, operated by an employé of defendant, was being lowered, and when about opposite the third floor, the said operator, an employé, agent, and servant of the defendant, negligently and carelessly stopped said car with such a sudden jerk that the weights rebounded and the elevator car rebounded so severely that the piece of timber fell from between the weights and dropped downward about thirty feet, and, falling lengthwise, struck plaintiff on and about the head, inflicting the injuries complained of, and it was assigned as negligence that defendant, through its agent, servant, and employé in charge of and operating said elevator, carelessly and negligently stopped the car with such a sudden jerk that the weights and car rebounded with such force as to cause the piece of timber to become dislodged from between the weights, causing same to fall down upon plaintiff, severely injuring him. It was also charged that defendant failed to screen the top of the elevator.
The answer to the amended petition was a general denial and a plea of contributory negligence, it being alleged that the chief engineer of the defendant showed plaintiff the safe and customary way of doing the work plaintiff was about to do; that the way to do the work was to run the weights to the bottom of the pit and to block the weights in the pit, and that when done in this way the elevator would not have to be moved at all; that plaintiff chose to do the work by blocking the weights while the elevator was in motion, which method was alleged to be unsafe and contrary to the customary manner of doing such work; and that the elevator was being moved at the plaintiff's special instance and request and was not stopped until after the accident.
The plaintiff testified that he had some 30 or 35 years' experience in constructing and repairing elevators; that some did this particular work one way and some another way; that he did it the customary way; that on the occasion in question the engineer of the defendant turned the elevator over to plaintiff and his helper; that they then ran the elevator to the basement for the purpose of raising the weights as high as they would go so as to get the proper length for cables; then his helper brought the elevator back from the pit to the top floor and then lowered it to where the weights and elevator met in the shaft; he had gotten a box to stand on, measured the space between the drum weights and the balance weights, found it to be 13 inches, and then prepared a block of wood 13 3/8 inches and drove it between the weights with a hammer in order to make it fit tight; that in order to handle the situation from the pit it would have been necessary for him to have been under the elevator and to have climbed a ladder to reach the weights; that after the weights were blocked, there was no reason for their going down in the elevator, and he, believing his helper was in charge of the car, said, "All right," and then the defendant's employé dropped the elevator until some one called, and the elevator was stopped, and the block was dislodged and fell; that the placing of this block between the drum weights and the car-balance weights was necessary so that the equalizer between the two weights would not be crushed. He also testified that his back was to the person operating the car; that the operator of the car started the elevator downwards when some one (he did not know who) "hollered," and the operator suddenly stopped the car, causing it to jerk and dislodge the block. The helper of the plaintiff testified that he had served under some 40 men engaged in the same work as the plaintiff, and that all of them, excepting one, blocked the weights just as the plaintiff did. The defendant's engineer testified that the customary way of putting in such drum cables is to lower the weights into the pit of the elevator by sending the car to the top, and that he had instructed the plaintiff that this was the safe, sane, and customary way to do it; but plaintiff denies having heard the engineer make this statement. He further testified that the plaintiff could have wired or otherwise fastened the block to prevent its falling out. The operator of the elevator testified that he did not stop the car until after the block injured the plaintiff, and that there was no jerk when the elevator was stopped suddenly.
Another witness for defendant (an elevator salesman) also testified that the customary way to put in drum weights and new cables is to land the weights in the pit, take slack on the cables, take them off the drum, and reinstall them. He further testified that if the work was done in the pit there was some danger of the elevator coming down and crushing the man in the pit, and that he knew of cases of men being so injured by the counterweights coming down.
The appellant assigns as error the giving by the court of plaintiff's instructions I and III and in modifying defendant's instructions VI and VI-a and in refusing defendant's instructions A, B, and C.
So far as the record discloses, the appellant did not ask for a peremptory instruction, so that the only question involved is whether the court submitted the case to the jury upon proper instructions. Stephens v. Saunders (Mo. App.) 239 S. W. loc. cit. 601; Gee v. Sherman (Mo. App.) 293 S. W. 789.
Appellant urges, as the main ground of its complaint, the court's refusal to...
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