Fishell v. American Press

• Decision Date: 26 June 1923
• Docket Number: No. 17563.,17563.
• Citation: 253 S.W. 508
• Parties: FISHELL v. AMERICAN PRESS.
• Court: Missouri Court of Appeals

253 S.W. 508

FISHELL v. AMERICAN PRESS.

No. 17563.

St. Louis Court of Appeals. Missouri.

June 26, 1923.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Action by Raymond Fishell, by Clyde Fishell, next friend, against the American Press, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Buder & Buder, G. A. Buder, Jr., and E. E. Schowengerdt, all of St. Louis, for appellant.

John F. Maloney and Safford & Marsalek, all of St. Louis, for respondent.

BRUERE, C.

Action by Raymond Fishell, a minor, by Clyde Fishell, next friend, to recover damages for personal injuries sustained by him in operating an elevator belonging to the defendant. The trial below, before the court and a jury, resulted in a verdict and judgment for $5,000. Subsequently the plaintiff, at the order of the trial court, filed his remittitur of $1,000 from the verdict and judgment; thereupon a new judgment for the sum of $4,000 was entered in favor of the plaintiff and defendant appealed.

The material allegations of the petition, in support of which evidence was introduced at the trial and upon which the case was submitted to the jury, are that the defendant, at the time of the accident, was engaged in operating a printing and publishing plant, and in connection therewith a power elevator running from the basement of its building to and through an opening in the sidewalk; that defendant negligently failed to place a guard around the platform of the elevator, although said elevator was dangerous to employees of defendant thereon or thereabout while engaged in their ordinary duties to defendant, and could have been safely guarded; that defendant negligently caused and permitted plaintiff, then 14 years of age, to be in defendant's employ, and to ride up and down upon said unguarded elevator and to operate the same; that defendant negligently caused and permitted the platform of said elevator, while in use, to be and remain in a slippery, unsafe, and dangerous condition; that defendant negligently caused and permitted the place'where plaintiff was required to work, by reason of the facts aforesaid, to be and remain an unsafe and dangerous place for plaintiff to work; that plaintiff was then and there inexperienced in and ignorant of the danger attending the operation of said elevator, and that defendant, by the aforesaid negligence, directly and proximately caused plaintiff, then in defendant's employ and acting within the scope of his employment, to slip upon the platform of said elevator and his left foot to be caught between said elevator platform and the side of the opening in said sidewalk, and plaintiff thereby to be injured.

The answer is a general denial coupled with the charge:

"That whatever injuries, if any, were suffered by the plaintiff as alleged in his petition were due solely and exclusively to his own negligence directly contributing thereto."

The errors assigned here relate to the refusal of the trial court to direct a verdict for the defendant, to the giving and refusing of instructions, and that the verdict is excessive.

The undisputed facts in the case are these: The defendant was engaged in operating a printing and publishing plant in a building located on the northeast corner of Broadway and Chestnut streets in the city of St. Louis, Mo. In the building was an elevator or hydraulic freight hoist owned and operated by the defendant. This elevator ran from the basement upward 23 feet through an opening in the public sidewalk on Chestnut street, to an elevation 3 feet above the sidewalk. It consisted of a platform, 6 feet long and 4 feet wide, which rested upon a piston that was moved up and down, by hydraulic power, in a casing set in the ground. The platform was composed of wood to within 6 inches of its edges; from there to its edges it was constructed of iron. The elevator was operated through an open space, and the platform thereof was not inclosed with anything in the nature of a guard or railing, but the same was open on all four sides. When the platform passed through the opening in the sidewalk, there was a space of about one-half of an inch, on all sides, between its edges and the edge of the sidewalk. The elevator was moved upward by pulling down on a chain that ran around a pulley at the bottom thereof, and it was moved downward by pulling up on a chain located in the corner thereof.

On the day of the accident there was a heavy rainfall, commencing about 10:20 m., and ending about 6 p. m. There was an awning attached to plaintiff's building which, when lowered, extended over all except about 9 inches of the south side of the elevator platform. This awning was torn and split and permitted the rain to run through and upon the elevator platform.

The plaintiff was 14 years and 11 months old at the time of the accident. Be was in defendant's employ as a bundle boy in delivering newspapers, published by the defendant, and had been so engaged during the preceding 2 months. His employment required him to get the papers from the press, in the basement of defendant's said building, put them on the elevator, take them upstairs to the sidewalk, load them on the delivery trucks, and then accompany the trucks and deliver the papers at designated stations about the city.

On the occasion of the accident, which occurred about 4:30 p. m., plaintiff had placed his bundles on the elevator. There was about a foot and a half space between the bundles and the edge of the elevator platform. After starting the elevator upward, plaintiff attempted to sit down on one of the bundles, and while he was in the act of doing so his feet slipped from under him and went over the side of the platform. He pulled his right foot out, but his left foot was caught between the elevator platform and the sidewalk, causing the injury complained of. When plaintiff's foot came in contact win the edge of the sidewalk, another employee of defendant, a colored boy, who was riding on the elevator with plaintiff, pulled the chain and moved the elevator downward.

The evidence, on the part of the plaintiff, shows that the defendant required the plaintiff to ride upon and operate the elevator in bringing the bundles of newspapers from the basement to the sidewalk; that plaintiff so used the elevator four or five times a day, during his said employment, previous to the accident; that there were six other bundle boys in defendant's employ who always rode on it; that defendant's foreman at times rode on it with plaintiff and told plaintiff that the bundles could not be carried up the stairway because they varied in size and it would require too much time to get them up that way.

In respect to the injury received by the plaintiff as a result of the accident, the evidence, on the part of the plaintiff, is that plaintiff's left ankle was severely injared; that the two bones which form the upper half of the ankle joint, called the external and internal malleolous, had been broken away; that the large, heavy ligament that attaches to this bone had been torn loose at the outside, which permitted the foot to turn in; that at the time of the trial, which occurred 2 years and 2 months after the injury, plaintiff was suffering with an enlarged, swollen, weak, and stiffened ankle joint; that the use of the foot is not properly regained in cases of this kind, where the ligament is torn loose and will not again adhere to the bone; and that plaintiff's injury was permanent.

The evidence further showed that plaintiff was treated at the city hospital at St. Louis, Mo., for 5 weeks; that his leg was set and a cast put on it, which remained thereon until 6 weeks after he left the hospital; that he required the aid of crutches for 3 months thereafter and then used a cane for 2 months; that after discarding the cane his leg still pained him if he walked three or four blocks; that he was not able to go back to work until a year and 11 months after the accident; that at the time of the trial he could not walk more than 20 minutes without his leg hurting him; that if he started to run his injured ankle turned under him; that he was unable to skate because of the injury; and that at the time of the trial his injured foot was about the same as it was 3 months prior thereto.

On the part of the defendant, the physician who examined the plaintiff when he was brought to the hospital, testified that the plaintiff sustained a fracture of both malleolous or ankle bones; that he found no ligaments torn from the bone and that, based on his experience, his opinion was that a boy of plaintiff's age would have a fair recovery and would regain a proper function of the injured member in about 8 or 10 weeks after the fracture,

On cross-examination, the witness testified that, on the day of the accident, he made a preliminary examination of the plaintiff and sent him to another division of the city hospital, and thereafter had no further knowledge of plaintiff's case than that acquired from the daily hospital records which he looked up.

M. J. McLaughlin, defendant's foreman, testified that he told the plaintiff to use the stairway, that he was not supposed to ride on the elevator; that the bundle boys all received instructions not to ride on the elevator; that there was a printed sign posted warning them not to do so; that he knew they frequently rode on the elevator and that he told them they were taking their own chances in doing so.

Two witnesses, on behalf of the defendant, testified that they were familiar with the elevator in question; that similar elevators were in common use in said city and that it was not customary to put a guard on the platforms.

Counsel for defendant contend that the plaintiff cannot recover because the evidence shows:

"That the appliance on which the accident occurred was a freight hoist intended solely for the conveyance of paper, and not a...