Goldsmith v. Holland Bldg. Co.

• Decision Date: 20 June 1904
• Citation: 81 S.W. 1112,182 Mo. 597
• Parties: GOLDSMITH v. HOLLAND BLDG. CO.
• Court: Missouri Supreme Court

81 S.W. 1112

182 Mo. 597

GOLDSMITH v. HOLLAND BLDG. CO.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

CARRIERS — ELEVATORS — DEGREE OF CARE — NEGLIGENCE — EVIDENCE — DAMAGES — EXCESSIVENESS.

1. A company operating an elevator in its office building for the use of tenants and their visitors is a common carrier of passengers for hire, and, though not an insurer of the safety of a passenger, must use such care, prudence, and caution to prevent injury to a passenger as a very careful and prudent person would use and exercise in a like business and under similar circumstances.

2. Where a passenger was injured in an elevator, that a metal projection protruded from the floor directly in front of the open side of the elevator cage, that the removal of the projection was recommended by an expert, and that the passenger's dress caught on some obstruction or projection in the elevator shaft, causing the injury, are sufficient to show negligence in the maintenance of the elevator, and justify the jury in finding a causal connection between the negligence and the injury.

3. Where plaintiff has sustained a permanent injury to her foot and limb, has suffered greatly and spent months in the hospital, undergoing two operations, and will probably never be well, a verdict for $8,500 is not excessive.

4. In an action for injuries in an elevator, an amendment alleging that defendant knew, or by the exercise of ordinary care could have known, that the appliance was dangerous, to conform to proof to that effect, admitted without objection, was properly allowed.

5. Where plaintiff's injury in an elevator was caused by a combination of a metal projection and the open side of the elevator cage, it was proper to refuse an instruction that the jury should not consider the fact that the elevator cage had no doors.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by Lucille E. Goldsmith against the Holland Building Company. From a judgment for plaintiff, the defendant appeals. Affirmed.

Given Campbell, for appellant. James M. Sutherland, for respondent.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries sustained by the plaintiff on April 26, 1901, while a passenger on one of the defendant's elevators, in the Holland Building, in St. Louis. The plaintiff recovered a judgment for $8,500, and the defendant appealed.

The petition charges that, while plaintiff was a passenger on one of defendant's elevators, "her dress caught in a metal arm or obstruction in the wall of said elevator shaft, forcing her off her feet, which were violently forced against the elevator, and again causing her to be thrown to the floor of said elevator, and she sustained injuries to her head, back, shoulders, and foot was sprained, the bones of the foot broken and dislocated." After describing plaintiff's sufferings and injuries, the petition then proceeds as follows: "And plaintiff further avers that said elevator at said time was in a defective and dangerous condition; that the construction of said elevator was such that the car or cage of said elevator, in which plaintiff was being carried as a passenger as aforesaid, was defective, in that it had no doors thereto, and in passing the several floors of the building passengers were liable to be caught in their clothing or persons upon or against the dangerous metal arms or obstruction on the wall of the elevator shaft opposite the side of the exit from said elevator cage; and that the said wall of the elevator shaft was defective and dangerous, in that there was fastened to said wall, between the floors of each story of said building, metal arms or obstructions projecting outward from said wall for several inches, and so that the outward end of said metal arms or obstructions came close to the edge of the doorless elevator cage as the latter ascended and descended. And plaintiff further avers that on the date aforesaid, whilst plaintiff was such passenger upon said elevator, by reason of the said defective and dangerous condition and construction of said elevator and elevator shaft, and want of doors on said elevator cage, the plaintiff was, while such passenger, caught by her dress on one of said dangerous metal arms or obstructions in the wall of said elevator shaft, and thereby injured in the manner and to the extent hereinbefore particularly stated." The answer is a general denial.

The facts are these: The defendant is the owner of a certain 12-story office building, on the west side of Seventh street, between Olive and Pine streets, in St. Louis, in which it maintains three elevators for the transportation of passengers. The elevators are of the usual construction, except that the cage or car of the elevator has no doors, but the doors are in the elevator inclosure of the elevator shaft on each floor, and that the doors are closed automatically, by a compressed air device, which may be roughly described as follows: About 2 feet below the level of each floor, and opposite the uninclosed exit from the elevator, and fastened to a horizontal bar, there is a metal arm or projection resembling somewhat in shape the letter U with one leg elongated. This arm projects about ¾ of an inch beyond the "nosing," or edge of the floor at the entrance to the elevator, and was the same distance from the outer edge of the floor of the elevator. On the top of the elevator cage there is what is called a "tripper." By simply touching a button in the elevator cage the boy can cause the metal arm to engage the tripper, and thereby the door would be closed. The elevator cage is about 5½ feet square. The front of it is entirely open, except about 9½ inches on the east side, where there is a metal grill work. The metal arm above spoken of is opposite the open front of the elevator cage and about 8 inches west of the grill work referred to. The plaintiff was employed in an art studio on the seventh floor of the building. On the day of the accident, between 2 and 3 o'clock in the afternoon, she had occasion to visit the ladies' toilet room, which was on the twelfth floor of the building. Returning, she boarded the elevator, where she was the only passenger, and took a position about a foot from the east side of the elevator, and about the same distance from the front of the elevator. As the elevator was passing the tenth floor, her dress caught on some obstruction, she was lifted off of her feet and carried to the top of the elevator cage, and then her dress was torn, so that she was released and she fell to the floor of the cage and was rendered unconscious and seriously injured. She says she does not know what it was that her dress caught on, but that it was some obstruction in the elevator shaft. When she recovered consciousness she was in a doctor's office on the ninth floor of the building. She was carried home in a carriage, and was attended by Dr. Phillips, the doctor aforesaid, for about six weeks. Then about June 19th Dr. Broome was called in, and he attended her until the last of September, when he had her removed to a hospital, where he operated on her. She remained at the hospital about four weeks, and was then carried home and kept in bed for 3 weeks. A plaster cast was kept on her foot continuously for 7 weeks. Dr. Broome treated her until February 1, 1902, when she employed Dr. Conzelman, who had her removed to a hospital, where he, with Dr. Witherspoon, the chief surgeon of the hospital, operated on her about February 15, 1902. She left the hospital on April 1, 1902. She had lost about 25 pounds in weight, her leg had shriveled, she suffered great pain, and up to the time of the trial, 13 months after the accident, she had never been able to walk, or to bear her weight upon her foot, and was unable to rest it upon the floor longer than a few minutes at a time. The particular injury was a dislocation of the astragalus. To reduce the dislocation the doctors tried soft bandages, plaster of paris casts, and finally they cut the Achilles tendon, so as to force the astragalus back into place, and then put the foot in a plaster of paris cast until the tendon reunited and healed. (This, of course, is not a medicotechnical description.) The X-ray discloses a deposit or unnatural substance in the ankle joint, and there is testimony that her injuries are permanent, and that she will never fully recover. Her doctors' and hospital bills amount to several hundred dollars.

The plaintiff introduced a mechanical and electrical engineer, who examined the elevator, and who made a report to the then manager of the building as to the condition of the elevator, some time before April, 1901; the exact time not being shown by the abstract of the record. He recommended "that the metal arm aforesaid should be moved over beyond the inclosure of the door, beyond the door, on account of it sticking out there in the hatchway." The plaintiff also called an inspector of elevators in St. Louis, who testified that he examined this elevator before the accident, and that in his judgment the liability of a person's clothing catching on the metal arm spoken of as the elevator passed up or down was very great. On the other hand the defendant showed that the elevator was put up by a competent firm,...