Grote v. Hussmann

• Decision Date: 08 June 1920
• Docket Number: No. 16082.,16082.
• Parties: GROTE et al. v. HUSSMANN.
• Court: Missouri Court of Appeals

223 S.W. 129

204 Mo. App. 466

GROTE et al. v. HUSSMANN.

No. 16082.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Rehearing Denied June 25, 1920.

Appeal from Circuit Court, City of St. Louis; Hon. Benj. J. Klene, Judge.

Action by Frederick Grote and William Grote, executors of the estate of C. August Grote, against Harry L. Hussmann. Judgment for plaintiffs, and defendant appeals. Affirmed.

Clarence T. Case and Victor J. Miller, both of St. Louis, for appellant.

William F. Woerner and Campbell Cummings, both of St. Louis, for respondents.

NIPPER, C.

This is an action for damages for personal injuries, alleged to have been sustained by C. August Grote, by falling down an elevator shaft on the premises of appellant, Hussmann. Since the appeal was, filed in this court, the original plaintiff died, and the present respondents were substituted as parties plaintiff. The jury returned a verdict for plaintiff in the sum of $10,000. The defendant filed a motion for new trial, after which the trial court made an order that, unless plaintiff remitted $5,000 from the verdict, the motion for new trial would be sustained. Plaintiff thereupon filed his remittitur in the sum of $5,000. The court then overruled the motion for a new trial, and defendant appeals.

The negligence alleged in the petition is that defendant and his agents and servants in charge of the elevator carelessly and negligently opened, and caused and permitted to stand open, said entrance door of said elevator shaft, and failed to guard the open entrance, when they knew, or should have known by the exercise of ordinary care, that by reason of the dark condition of said shaft plaintiff, by the exercise of ordinary care, would not know that the elevator was not at the entrance, and that they carelessly and negligently failed to keep said elevator shaft entrance closed and properly guarded, or to properly warn plaintiff. Defendant's answer was a general denial and a plea of contributory negligence, in that plaintiff saw, or by the exercise of ordinary care could have seen, that the elevator was not at the floor, and that, although warned by defendant not to go into the opening, the plaintiff carelessly and negligently pushed himself past one of defendant's servants and stepped into said opening, and fell to the bottom of the shaft. Plaintiff's reply was a general denial.

Plaintiff testified that he was a salesman for a woodworking machine company, and had worked for this company for many years. He was acquainted with the defendant, and had been for some time prior to the date he sustained the alleged injuries, which was on the 10th of September, 1915. The defendant was in the butcher supply business, and had just started in the business, and was putting in machinery to build ice boxes, refrigerators, etc. Defendant was conducting his business in a four-story building, located at 911 North Broadway, St. Louis. Prior to the date of his injuries, plaintiff had sold Hussmann some machinery, and had gone down in South St. Louis, at the direction of Hussmann, to look at some secondhand machinery. On the day he received his injuries, and at about 2 or 3 o'clock in the afternoon, he went to Hussmann's place of business to see if he had installed this secondhand machinery. Immediately prior to the accident, he was talking to Hussmann near a counter on the first floor of the building, and within about four feet of the elevator shaft. This elevator shaft was located near the center of the building, and was operated by means of a rope. When any one desired to use the elevator they would open the door leading to the elevator shaft, and reach in and pull the rope, and bring the elevator either up or down as they desired. The door to the shaft was kept closed, except when the elevator was at the floor where the door was open. After talking to defendant for some little time, one of defendant's servants or employés came to the elevator shaft door and opened the door. Plaintiff had started upstairs to look at the machinery which had recently been installed, just about the time defendant left the store. As to what took place just at this time, and why plaintiff was attempting to use the elevator, we quote from the record:

"Q. All right; now state what occurred in your own words while you were talking with Mr. Hussmann, and afterwards. A. After I came there and talking to Mr. Hussmann and Mr. Hussmann told me—I asked him if he got that machine, and he says, `Yes, it is upstairs,' and he told me them words. He says, `I will tell you, I have got to leave to-night for Chicago and Grand Rapids, and I come back next week and then I give you an order for the other machine, and I was to go upstairs there to tell Charlie and post him haw to put that machine in the right place to keep that agoing,' and that is the words Mr. Hussmann told me, and I turned around, and I says, `All right, `Harry,' and we was always good friends, and I turned around and the elevator door was wide open, and the man was standing right alongside of the elevator, and I thought that the elevator was there waiting for me, and I walked right in and fell down.

"Q. How wide open was that door? A. All the way open; it was a big open door.

"Q. What was the situation there with respect to light? A. I didn't notice that; that was all gray on the bottom.

"Q. Was there much light or little light? A. Little light.

"Q. How much was turned on, could you say? A. You could see everything gray, dark and gray, so you can't tell another floor from the elevator, if the elevator is there. If the elevator is there it is working there, if it is there."

Plaintiff fell into the elevator shaft 18 feet below, and received many injuries, which it is unnecessary here to set out, after which he was taken to a hospital, where he remained for many weeks.

Plaintiff testified on cross-examination that he had been on this elevator before on numerous occasions; that there was a small light in the elevator, but it was never turned on until after he got into the elevator; and, when asked the question that if he did not know that the opening there was dark, and there was no elevator there, he stated he thought the elevator was there, because the door was away open, and the man standing alongside of the elevator door. He says he passed directly in front of the man standing by the elevator door.

Alfred J. Heyer, testifying for defendant, stated that he was in the employ of defendant at the time the accident occurred, and was standing by the elevator shaft with the door partly open, and his hand upon the door; that he was talking to Hussmann as he left the building, and, while so doing, plaintiff pushed himself in behind him and stepped into the elevator shaft; that he held tightly to the door to keep from falling into the shaft with plaintiff. His contention was that the door was only open about eight inches; that he had gone to the elevator shaft and, opened the door and pulled the rope to let the elevator come down, and while waiting for it to come down was standing with his back to the opening, talking to Hussmann, who had turned toward him as he started to leave the building; that just before plaintiff stepped into the shaft, or about the time he stepped in, he heard defendant say, "Gus, don't go in there; don't go in there, Gus;" but that plaintiff pushed by his shoulder and stepped in. He said that he did not remember whether it was light or dark on that day, but that as a general rule `they kept a light or two burning in...