Glasscock v. Swafford Bros. Dry Goods Co.
| Decision Date | 04 April 1904 |
| Citation | 80 S.W. 364,106 Mo.App. 657 |
| Parties | ROBERT L. GLASSCOCK, Respondent, v. SWAFFORD BROS. DRY GOODS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
AFFIRMED.
Cause reversed.
Pratt Dana & Black for appellant.
(1) There is no evidence that plaintiff's injury was caused by any actionable negligence of defendant, and hence a verdict should have been ordered in its favor. As to the presumptions: Wood's Master and Servant, sec. 382; 2 Thompson on Negligence, sec. 48, p. 1053; Railroad v Wagner, 33 Kan. 666; Jewett v. Railroad, 50 Mo.App. 551; Nolan v. Shickle, 3 Mo.App. 305; O'Donnell v. Baum, 38 Mo.App. 249; Smith v Railroad, 113 Mo. 82. (2) As to facts necessary to be affirmatively proved: (a) The burden rested upon plaintiff of affirmatively proving negligence on the part of defendant. Gurley v. Railroad, 104 Mo. 223; Perse v Railroad, 51 Mo.App. 171; Yarnell v. Railroad, 113 Mo. 570; Dowell v. Guthrie, 116 Mo. 646; Bowen v. Railroad, 95 Mo. 268; Murray v. Railroad, 101 Mo. 236; Brown v. Lumber Co., 65 Mo.App. 165; Norville v. Railroad, 60 Mo.App. 416; Fuchs v. City, 167 Mo. 635; Musick v. Packing Co., 58 Mo.App. 330; Krampe v. Assn., 59 Mo.App. 277. (b) And not only did the burden rest upon plaintiff of affirmatively proving some such negligence or failure of duty on the part of defendant, but plaintiff was limited to and the burden rested upon him of proving negligence as alleged in his petition. Ravenscraft v. Railroad, 27 Mo.App. 617; Pryor v. Railway, 85 Mo.App. 378; Hite v. Railway, 130 Mo. 132; Jacquin v. Cable Co., 57 Mo.App. 320. (c) Furthermore, the burden rested upon plaintiff, after proving some failure, as above stated on the part of defendant in discharging its duty to plaintiff, to also prove that such failure was not only the cause but the proximate cause of his injury. Killian v. Railway, 86 Mo.App. 476; Brown v. Railway, 20 Mo.App. 227; Cooley on Torts, p. 69; 1 Jaggard on Torts, p. 62, par. 24, and many authorities there cited. (3) On the record and so far as defendant is concerned plaintiff's injury was in law an accident.
H. J. Latshaw, Jr., and E. M. Perdue for respondent.
(1) Under the circumstances of this case it was not incumbent upon respondent to prove the exact reason or cause of the accident. The very fact itself that the elevator door fell, under the circumstances, was of itself sufficient to entitle respondent to go to the jury. Tateman v. Railroad, 70 S.W. 514; Crane v. Railway, 87 Mo. 594; 103 Mo. 328; Breem v. Cooperage Co., 50 Mo.App. 202; Bowen v. Railroad, 95 Mo. 268. (2) Appellant lastly contends that on the record, and so far as appellant is concerned, respondent's injury was in law an accident; but the cases cited in support of this contention do not appear to us to be parallel cases.
This is an action brought by plaintiff against defendant, a business corporation, to recover damages for personal injuries claimed to have been received by the former on account of the negligence of the latter. The defendant occupies for the transacting of its business, which is that of wholesale dry goods, a large building several stories in height situate in Kansas City, Missouri. The plaintiff on and some time before September 27, 1900, was and had been in the employ of defendant, and his duties as such employee were in part to remove goods from one story of said building to another, as required, and in performing these duties he and a coemployee were furnished with the exclusive use of a freight elevator which was against the north wall of the building and which had in front and across the entrance to it a safety gate about three feet high, weighing something like twenty-five pounds, which worked automatically with the ascending or descending of the elevator; that is, when the elevator reached any floor of the building in ascending or descending, the gate would rise so that the entrance to the elevator would be open while it stood opposite any floor, and closed when it was above or below. The plan of the gate and its attachments were such that when the elevator approached a floor from above or below, an arm attached to the latter moved a horizontal bar and thereby caused a wood sheave carrying the rope to revolve and take it up, and in that way raise the gate. The rope extended from the circumference of the wood sheave to which it was fastened upwards diagonally to where it passed over two pulleys, the second of which was directly above the center of the gate, and from the latter to the gate itself and vertically along it to its bottom slat when said rope passed through a horizontal hole therein and was there held by a knot tied in the end of it. Accordingly, the height to which the gate would ascend depended upon the length of the rope just referred to. The shorter the rope the higher it would ascend. The height to which it could be made to reach could be regulated by pulling the rope further through the slat and then tying another knot in it further from the end. The elevator gates and appliances connected therewith were all comparatively new, having been in use not over nine months. The rope by which the gate was raised was of the diameter of seven-sixteenths of an inch, the size and kind generally used for such purpose.
It was one of the duties of the plaintiff and his co-employee engaged with him in the performance of the same work to report anything in the elevator or its attachments or appliances which they noticed to be wrong, said report to be made to one Smith, engineer of the building. It was the duty of the latter to daily inspect the elevator gates and other appliances connected therewith and it appears that he had performed this duty the day of the injury and preceding the hour in which it occurred and that he had found everything in good order and working right.
On the day of the injury the plaintiff used the elevator until lunch time noticing nothing unusual in it or the gate or any attachment to either. After plaintiff had returned to his work he had picked up a truck load of goods on the fourth floor and was ready to descend to the packing room in the basement but he found the elevator not at that floor. He testified that in order to move it there he reached over the gate, took hold of the elevator rope and pulled down, and that this started the elevator up and as it reached the floor on which he was standing the gate moved up some distance when he reached under it to catch hold of the rope in order to stop it; and while in that position he was struck on the head by something. As to exactly what struck him he seems not to have been entirely certain. He at first testified that it was the gate, and afterwards that he did not know what it was. No one was present when the injury occurred but he was found lying in an unconscious condition on the elevator floor with the gate down. He was severely hurt.
An examination of the elevator and gate disclosed that the rope which ran from the pulley down to the gate had been broken between the top and bottom of the latter. It was a clean transverse break of it. When the gate was put in the knot was tied in the end of the rope so as to give it the length required for the proper operation of the gate. The expert testimony was that if too short the effect would be to lift the gate up until it came in contact with the pulley. When it broke there was found to be a second knot in it, which shortened it from four to six inches. There was a dent in the center of the top of the gate just where it would strike the pulley if lifted high enough to come in contact with it. It was testified by the engineer, Smith, that the striking of the pulley by the gate would tend to break the rope and that if the second knot had not been tied in the rope, whereby it was shortened, that the length allowed by the first knot tied at the end would not have subjected it to such tension as would have caused it to break. He further testified that by the inspection made by him in the morning before the injury he discovered that the rope was long enough and in good condition--that there was no indication of any wear or tension, or anything of that kind; that the gate did not then bump against the pulley at all; and that the rope then left about two to five inches between the gate and pulley when the former went up. The plaintiff himself testified that in the morning before the injury the gate worked well, and that he observed nothing wrong with it.
The negligence specified in the petition was that the rope attached to the gate, and which lifted and lowered it, was too short and not of sufficient strength or thickness to properly run and support it; that said rope was made of weak and improper material, and was improperly adjusted, all of which was well known to defendant, or by the exercise of ordinary care could have been known by it.
The defendant complains that the trial court erred in refusing to give its instruction declaring to the jury that upon the pleadings and evidence the plaintiff was not entitled to recover.
The evidence is undisputed that the rope by which the gate to the elevator was moved was comparatively new and of good material--such as was generally used for that purpose, and that it was properly adjusted; and so the only part of the specification of negligence which we need notice is as to whether or not the rope was too short to properly operate the elevator gate, and if so whether or not it was known to defendant or could have been known to it by the exercise of ordinary care. As said by us in Wendal v Railway, 100 Mo.App. 556, 75 S.W. 689, while the law enjoins upon the employer the duty to furnish the employee a reasonably...
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