Hensler v. Stix

Decision Date16 May 1905
Citation88 S.W. 108,113 Mo. App. 162
PartiesHENSLER v. STIX et al.
CourtMissouri Court of Appeals

Defendants' elevator operator shut the elevator door on plaintiff's dress while she was standing in the car, and lowered the elevator at the same instant. The operator, seeing plaintiff's peril, suddenly reversed the lever, which resulted in the car suddenly turning upward, causing plaintiff's injuries; the operator claiming that, unless he acted as he did, the descent of the elevator could not have been stopped quickly enough to save plaintiff from harm. Held, that whether the operator was negligent in handling the elevator after he saw plaintiff's danger was for the jury.

6. SAME — PROXIMATE CAUSE OF INJURY.

The movement of the elevator upward, as distinguished from the negligence of the elevator operator in moving the elevator when he knew or should have known that plaintiff's dress was caught in the door, was not the proximate cause of the accident, as a matter of law.

7. SAME — ACTION FOR INJURY — INSTRUCTIONS.

In an action for injuries to an elevator passenger, an instruction declaring that negligence on plaintiff's part, directly contributing to the injury, would not bar her right to recover, if defendants' agent or servant, after discovering plaintiff's danger, might, by the exercise of ordinary care, have prevented the injury to her, was erroneous, as misleading, and as requiring of the operator no more than ordinary care to save plaintiff after he discovered her peril.

8. SAME.

The instruction was also objectionable as eliminating defendants' liability in case the elevator operator was negligent in not sooner discovering plaintiff's peril.

9. SAME — MANAGEMENT OF ELEVATOR — NEGLIGENCE.

Plaintiff's dress was caught in the door of an elevator as the door was closed after she entered it, and, the elevator being caused to descend immediately thereafter, the operator discovered plaintiff's peril, and reversed the elevator; and, before it could be stopped, plaintiff was injured by being caught between the elevator floor and the ceiling. Held, that as any negligence on plaintiff's part must have occurred, if at all, before the elevator began to descend, and the operator being charged with the duty to exercise unusual vigilance for plaintiff's safety, if by the exercise of such vigilance he could have seen that plaintiff's dress was caught in time to prevent injury to her, defendants were liable.

10. SAME — INSTRUCTIONS.

An instruction that defendants were liable, if plaintiff's injury was caused by "any failure" on their part to exercise care and precaution in the management of the elevator, as distinguished from a failure of duty "shown by the proof" was error.

11. SAME — LIABILITY FOR INJURY TO PASSENGER — ACCORD AND SATISFACTION — INFANCY.

Where plaintiff was injured by the operation of an elevator in which she was being transported from one floor to another in defendants' store, her failure to reply to a letter proposing that defendants would continue to pay for her board and attention at a hospital, if she assured them she would make no additional demand on account of her injury, did not constitute an accord and satisfaction; she being a minor until after she left the hospital.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Mary Hensler against Charles A. Stix and others. From a judgment for plaintiff, defendants appeal. Reversed.

Seddon & Holland, for appellants. J. E. Egger and J. E. Hainer, for respondent.

Statement of the Case.

GOODE, J.

The defendants are a firm of retail merchants in the city of St. Louis. Plaintiff was injured in an elevator accident while in their store as a customer, and on an elevator used to carry passengers to the different stories of the building. The accident occurred as the elevator descended from one of the floors. The evidence is contradictory as to which one, nor is the fact material. The elevator runs in a shaft. Each floor of the building has a sliding door attached to the floor and detached from the elevator, but opening into the shaft, and affording an entrance to and an exit from the elevator car. The car itself has an opening or doorway in the south side about three feet wide. When the car stops at a floor its doorway is immediately opposite the sliding door, which is pushed back for passengers to go in and out of the car, and closed before the car starts again. The testimony for the plaintiff is that just as she entered the elevator the youth who operated it told her to step back from the door, but instantaneously, and before she had time to step back, closed the door and started the elevator downward. It immediately appeared that her dress was fastened at the floor they were leaving, for when the car had descended about four feet the dress stretched taut, and plaintiff was lifted from the floor of the car and suspended between the floor and the top. The car was about seven feet high, and, if it had descended three feet farther, plaintiff would have been struck by the roof of it, and in all probability killed or seriously injured. The operator discerned her peril, and reversed the movement of the car, thereby causing it to shoot upward. The sudden upward movement threw the plaintiff's left leg through the open doorway of the car, and it was caught between the floor of the car and the ceiling beneath the story it approached in rising—the same story it had left. The elevator operator gave this account of the accident: "When I descended about four feet I noticed Miss Hensler was caught, and quickly reversed the elevator on the `up,' and the elevator— It was too short a distance for the elevator to go slow, and it went up quickly, and her leg was caught between the under portion of the floor and the upper portion of the elevator. * * * Why, I could never have stopped the elevator in time to save her from instant death. I couldn't stop the elevator in time. So there was only one way, and that was to quickly reverse the elevator. * * * Well, after I left the third floor, I descended about the distance of four feet, and I noticed that Miss Hensler's dress was caught, and quickly reversed the lever on the `up,' and in going up the jolt was too quick. It was too great for the engine of the elevator, and it shot up a little swifter than it usually ought to if you would run the elevator right; and, in going up, it threw her leg out, and her leg was caught between the upper portion—well, you can say the portion of the ceiling and the upper portion of the elevator —and it was drawed through. It was drawed through, and when we got to the third floor, why, her leg was out by that time." The resultant injury was a compound fracture of the limb below the knee. Defendants sent plaintiff to a hospital, and paid for her board and treatment until she was discharged. Some of the testimony tends to prove the elevator was at the fourth floor, instead of the second, as plaintiff swore, and that, in the teeth of warnings, she persisted in standing close to the open entrance, in consequence of which imprudence her dress caught at the third floor.

Negligence is charged against defendants in the petition as follows: "The plaintiff states that the defendants, unmindful of their duties in the premises, failed to carry plaintiff well and safely between said floors heretofore mentioned, in this: that, as plaintiff was standing in said elevator, defendants' agent, without fault on plaintiff's part, carelessly and negligently suddenly closed the door of said elevator so as to catch said plaintiff's dress in the door and entangle it in the wheels of the elevator, which said wheels were carelessly and negligently exposed and uncovered; and defendants' agent then started said elevator before said dress was disentangled from said door and wheels, whereby plaintiff was thrown with great force and violence against the side and top of said elevator, whereby plaintiff was mangled, bruised, and greatly injured, her leg was broken," etc.

The following letter was offered by defendants and excluded:

"St. Louis, February 2d, 1901. Miss Mary Hensler, Care of St. Luke's Hospital, City— Dear Miss Hensler: Referring to the accident that befell you at our plant some time ago, we beg to state that as a matter of generosity we have for some time been paying the expenses of your room, board, nurses and physician. These expenses we can assure you are very considerable. We have done this with pleasure and are willing to contribute to pay all these expenses until you are well as a matter of...

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  • Hesemann v. May Dept. Stores Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 2, 1931
    ......For the various applications of the rule see: Roberts v. Schaper Stores Co., 318 Mo. 1190; Luckel v. Century Bldg. Co., 177 Mo. 608; Hensler v. Stix et al., 113 Mo. App. 162; Marker v. Mitchell, 54 Fed. 637, 62 Fed. 139; Lemon v. Chanslor, 68 Mo. 340; Dougherty v. The Mo. R.R. Co., 9 Mo. ......
  • Hartnett v. May Department Stores Co.
    • United States
    • Court of Appeal of Missouri (US)
    • July 16, 1935
    ...... movement thereof. Hesemann v. May Department Stores. Co., 39 S.W.2d 797, 225 Mo.App. 584; Hensler v. Stix. et al., 113 Mo.App. 162; Luckel v. Century Bldg. Co., 177 Mo. 608; Roberts v. Schaper Stores. Co., 318 Mo. 1190, 3 S.W.2d 241; ......
  • Hesemann v. May Dept. Stores Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 2, 1931
    ......For the various applications of the rule see:. Roberts v. Schaper Stores Co., 318 Mo. 1190;. Luckel v. Century Bldg. Co., 177 Mo. 608;. Hensler v. Stix et al., 113 Mo.App. 162; Marker. v. Mitchell, 54 F. 637, 62 F. 139; Lemon v. Chanslor, 68 Mo. 340; Dougherty v. The Mo. R. R. Co., 9 ......
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