Hake v. Buck's Stove & Range Co.

• Decision Date: 08 November 1921
• Docket Number: No. 16365.,16365.
• Citation: 234 S.W. 1061
• Court: Missouri Court of Appeals
• Parties: HAKE v. BUCK'S STOVE & RANGE CO.

234 S.W. 1061

HAKE v. BUCK'S STOVE & RANGE CO.

No. 16365.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

"Not to be officially published."

Action by Theresa Hake against Buck's Stove & Range Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Anderson, Gilbert & Hayden, of St. Louis, for appellant.

C. A. Wyers and A. R. Russell, both of St. Louis, for respondent.

BECKER, J.

This case was originally argued and submitted in December, 1920, and the opinion of the court therein filed in February, 1921. Appellant filed a motion for rehearing, which was sustained, and thereafter the case was reargued and resubmitted at our October call, 1921. The following opinion in the case is the same as the opinion originally written by Allen, P. J., with the exception of paragraph V thereof.

Plaintiff is the widow of Fred J. Hake, deceased, who died from injuries received by him on June 8, 1917, while in the employ of the defendant corporation as its servant; and the action is one under the death statute (sections 5426 and 5427, Revised Statutes 1909), to recover damages for the death of the deceased, alleged to have been occasioned by the negligence of the defendant. The trial below, before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $3,000, and the defendant appeals.

The petition alleges that on said June 8, 1917, the defendant was in the manufacturing business in the city of St. Louis, having under its control certain buildings used by it in its business, wherein were certain elevators and elevator shafts; that in one of said buildings an elevator shaft extended from the first floor into the cellar or basement of the building, which shaft, at the time mentioned, was unprotected and unguarded in any manner; that the portion of the building wherein this shaft was located "was dark and not illuminated by artificial light"; and that "on said first floor it was and long had been customary for the employés of the defendant to cross said elevator shaft by walking across the elevator when the same remained at the level of said first floor"; that on the day mentioned Fred J. Hake, while in defendant's employ; and while walking across this elevator, fell into the shaft thereof from the first floor of the building to the floor of the cellar below, sustaining injuries resulting in his death on the following day.

And it is alleged that the injury to and death of said Flake was caused by defendant's negligence in the following particulars: (1) That in violation of the statutes of Missouri defendant negligently failed to protect said shaft "by good and sufficient trapdoors or self-closing hatches, or safety catches, or strong guard rails, at least three feet high, and negligently and carelessly failed to use all due diligence to keep closed the elevator guard protecting the opening of said elevator shaft," and negligently "failed to keep said elevator guard closed at all times except when in actual use by the occupant of the building having the use and control of the same"; (2) that defendant, well knowing that its employés were, and long had been, accustomed to cross over the elevator when the same remained at the "first floor level of said building," negligently permitted the elevator to be moved from said first floor level without notifying plaintiff or other employés thereof; (3) that defendant negligently failed to provide for the illumination of the elevator shaft by either natural or artificial light; (4) that defendant negligently and carelessly permitted the elevator shaft to remain open and unguarded; (5) that said June 8, 1917, there was in force and effect an ordinance of the city of St. Louis, being section 447, c. 6, art. 4, of the Revised Code of St. Louis 1912, as follows:

"Sec. 447. Hatchways or Wellholes to be Barred or Inclosed.—Every hoistway, hatchway, stairway, or wellhole in every building, shall hereafter be securely guarded by means of proper gates, railings, or guards, or other inclosures, which may be approved by the commissioner of public buildings. Such guards or railings shall not be less than three feet in height nor more than one foot above the floor, and shall be so constructed as to effectually prevent persons from falling into such hoistways, hatchways, stairways, or wellholes. The owners, lessees, or occupants of any building in the city of St. Louis, in which hatchways or wellholes exist, or shall hereafter be constructed, shall cause the same to be effectually barred or inclosed, as provided in sections 450, 451, 452, and 453 of this article, for the prevention of accidents therefrom."

And it is averred that, in violation of the provisions of said ordinance, defendant, negligently "failed to securely guard, by means of proper gates, railings, or guards, said elevator shaft, so as to effectually prevent persons from falling into the same," and that such negligent violation of the ordinance directly caused the injury and death of said Hake. Alleging that plaintiff was the lawful wife of said Fred Hake, and that by reason of his death she has been damaged in the sum of $10,000, judgment is prayed accordingly.

The answer contains, first, a general denial. It then avers that "all of the conditions amid which plaintiff's husband was working on the occasion mentioned in said petition, and especially the fact that the elevator mentioned in said petition had been taken away from the first floor of the building, were known to plaintiff's husband, or by the exercise of ordinary care on his part would have been known to him"; and that whatever injuries, if any, were sustained by plaintiff's husband on said occasion, were due to his carelessness and negligence directly contributing thereto, in that he approached said elevator shaft and stepped into the same without exercising ordinary care to ascertain whether or not the elevator was at the first floor.

And further answering, it is averred that, though there were several safe ways of entering the building mentioned in the petition, and of passing from one part thereof to another without passing across the elevator or elevator shaft, plaintiff's deceased husband, "instead of selecting the safest method of passage, negligently and carelessly selected a less safe method, and negligently and carelessly undertook to walk across the elevator without exercising ordinary care to ascertain whether said elevator was at the said floor, when he knew, or by the exercise of ordinary care would have known, that said elevator was not at said floor," which negligence on his part directly contributed to whatever injuries, if any, were sustained by him. The reply puts in issue the new matter in the answer.

It is undisputed that plaintiff's husband was in defendant's employ on June 8, 1917, as alleged in the petition; that he was 43 years of age, in good health, and earning $2.90 per day, with which he supported his family; and that, on the day mentioned, he fell into the elevator shaft on defendant's premises, receiving injuries which resulted in his death on the following day.

The evidence discloses that defendant's factory consisted of a number of buildings occupying about one city block. The deceased worked in defendant's mounting department, in a large room, termed the "mounting room," on the ground floor of one of defendant's buildings. At the southeast corner of the building was a door by which the employs entered this room when coming to work and which they were required to use in leaving at the end of the day. In the same building, but outside of the mounting room and immediately north of the north wall of that room, was an inclosed elevator shaft. This shaft was located about eight feet from the west wall of the building, but separated from the mounting room by a brick wall, through which a large opening or doorway led to the shaft. The shaft was inclosed on the east and west sides thereof by wooden partitions, and on the north side by a partition or wall, with a door leading to the shaft. And about the north and west sides of the inclosed shaft was an open space, on this floor, extending to the west wall of the building and to a north wall or partition. In the west wall of the building, opposite the northern portion of the shaft, and consequently about eight feet from the northwest corner thereof, was a large doorway leading from the building, protected by a sliding iron door, termed the "fire door," with a transom above it. This door led to a loading platform running along the west side of the building.

There was a door, termed the "glass door," in the west wall of the mounting room at the extreme northwest corner of that room, and consequently about nine or ten feet from the south entrance to the elevator shaft. This door, which opened upon the loading platform at the west of the building, was usually kept locked. The south doorway of the elevator shaft, i. e., the opening to the shaft from the mounting room through the north wall thereof, was protected by a wooden bar, "pivoted" at one end—"a two by four that you just raise up and let down." This south entrance to the shaft was also equipped with a metal sliding door, suspended upon a horizontal rod or bar, by which the entrance could be completely closed; but it is to be inferred that this door was usually left open. The north entrance to the shaft was protected by means of a sliding gate which was raised and lowered by hand.

The evidence is that there was no door in the north wall of the mounting room except the door leading to the elevator shaft, and that consequently there was no direct means of reaching that portion of the building north of the mounting room except by passing through the elevator shaft when the elevator was at the level of that floor. And the only doorway leading from the mounting room to the west was the glass door mentioned, at the...