Howard v. Scarritt Estate Co.

• Decision Date: 19 February 1912
• Citation: 161 Mo. App. 552,144 S.W. 185
• Parties: HOWARD et al. v. SCARRITT ESTATE CO.
• Court: Missouri Court of Appeals

144 S.W. 185

161 Mo. A. 552

HOWARD et al. v. SCARRITT ESTATE CO.

Kansas City Court of Appeals. Missouri.

February 19, 1912.

1. DEATH (§ 24)—DEATH OF CHILD—ACTION BY PARENTS—CONTRIBUTORY NEGLIGENCE.

The parents of a four year old child cannot recover for his death caused by falling through the partly open door of a passenger elevator while it was moving, if the accident could have been avoided by their keeping a close lookout for his safety, and if, seeing that the door was open, they could have prevented him from falling by using proper efforts.

2. CARRIERS (§ 347)—ELEVATOR ACCIDENT— CONTRIBUTORY NEGLIGENCE — JURY QUESTION.

In an action by parents for the death of a four year old child who fell through the partly open door of a moving passenger elevator, whether the parents were guilty of contributory negligence held, under the evidence, a jury question.

3. APPEAL AND ERROR (§ 1039)—HARMLESS ERROR—VARIANCE—MATERIALITY.

In an action by parents for the death of a four year old child who fell from a passenger elevator down the shaft, any variance between an allegation in the petition that the child fell out of the car, and proof that he walked out, was immaterial, he not being chargeable with contributory negligence, and the action being grounded on negligence of the operator in leaving the door of the elevator open.

4. CARRIERS (§ 321)—INJURY TO PASSENGER IN ELEVATOR—DEATH OF CHILD—INSTRUCTIONS.

In an action by parents for the death of a four year old child who fell from an elevator down the shaft, it was not error to authorize recovery whether he fell or walked out of the elevator, he not being chargeable with contributory negligence, and the action being grounded on negligence of the operator in leaving the elevator door open.

5. APPEAL AND ERROR (§ 1078)—WAIVER OF OBJECTIONS—FAILURE TO ARGUE.

An objection not urged on appeal is abandoned.

6. CARRIERS (§ 280)—PASSENGER ELEVATORS —DUTY TO PASSENGERS.

The operator of a passenger elevator is bound to bona fide passengers to use the highest degree of care which one of ordinary prudence would use in a similar situation.

7. CARRIERS (§ 318)—PASSENGER ELEVATORS — NEGLIGENCE OF OPERATOR — EVIDENCE— SUFFICIENCY.

In an action for death of a four year old child who fell from a passenger elevator down the shaft, evidence held to sustain a finding that the operator was negligent in failing to

close the door of the elevator before starting the car.

8. DEATH (§§ 88, 95)—DEATH OF CHILD— INSTRUCTIONS—DAMAGES.

In an action by parents for negligent death of their infant child, an instruction which did not limit recovery to the child's minority, and which permitted recovery for loss of the child's comfort, society, and love, was improper.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Frank Howard and another against the Scarritt Estate Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Boyle & Howell and Jos. S. Brooks, for appellant. Ellis, Cook & Barnett, for respondents.

BROADDUS, P. J.

Negligence. The plaintiffs are husband and wife, and are prosecuting this action for damages for the death of their infant son, William Clarance Howard. The defendant corporation is the owner of a large office building in Kansas City, Mo., known as the Scarritt Building. It was shown that on the 10th day of January, 1910, the defendant maintained a series of elevators for the purpose of carrying persons up and down from the many stories of said building. On the day named, the plaintiffs, with their minor son, not quite four years of age, entered one of said elevators to be carried to the fifth floor or story of said building for the purpose of having the boy use the toilet room on that floor. At the same time another passenger, a Mr. Shurtz, entered the elevator to go to the second floor. When the elevator arrived at the second floor, it stopped, and the gate was opened for him to get out. He proceeded to do so, after which the elevator started up, and before the door was sufficiently closed the little boy either fell out or stepped out of the elevator, and fell to the bottom of the shaft and was killed. The elevator doors are not attached to the elevator itself, but to the shaft, and there is a separate door for entrance to and exit from the elevator on each floor of the building. These doors are composed of two parts. When the elevator stops, the doors open full. To close them, the operator of the elevator puts his hand on the edge of one of these parts to shove the two together. In the movement of one the other part automatically moves also, and by this means the two parts meet, and the door is closed.

The plaintiffs' evidence is to the effect that when the elevator reached the second floor and the door was opened, and Mr. Shurtz, the passenger, had gotten out, the elevator made a sudden jerk and started, and almost instantly the little boy was seen at the entrance of the elevator in the act of falling. The father of the boy testified that when he got into the elevator he had hold of the boy, but when he started to fall out perhaps he merely had his hand on his shoulder; that the mother and boy were in front of him and fully in his view; and that he made an effort to catch the boy before he fell, but failed. The testimony of Mr. Shurtz was to the effect that he had gotten out, and was some 10 or 15 feet away, when he heard a scream which attracted his attention to the elevator where he perceived the boy hanging out, and that he made a rush to grab him, but he slipped and fell, and the boy fell out and down the shaft.

L. W. Spaulding, who was the operator at the time, testified: That the car of the elevator is operated by electricity. He described the manner in which the elevator was operated, from which we quote the following: "When I got to the second floor, I opened the gate, and let Mr. Shurtz out. In closing the gate, I had hold of it with my hand, and I gave it a shove. The doors are double doors with a latch in the middle. You push one door, and that automatically pulls the other one to. They work easy; work up and down. They run on rollers up at the top. It doesn't require much force to push them. In closing them you hold the edge of the door and shove, and there is a sort of an outside jamb, pull it like that. When you open the doors to let a person out or to permit a person in, the doors come all the way open. When you take hold of the edge of the door, you then give it a shove, and the other door starts to meet it. They were about that far apart when I threw my lever over. I could not start the car without throwing my lever over. These doors were about two feet apart when I threw my lever over. And, when I threw my lever open, the doors were in that position, and were in the act of approaching each other. The car does not start the instant the lever drops down, but takes them about, well, it is hard to get the time of it. Can't give the time on it. It waits just an instant, and then starts up. At the time the car started up and got in motion the doors were not more than 12 or 13 inches apart. * * * I had been working in the Scarritt Building about three years. Had been operating these elevators about that long. In operating the elevators when you see everybody is off, or on, you start your gates closed, and then throw your lever over. That is the way I did it on this occasion. That is the usual and customary way of doing it. When the elevator started, something attracted my attention. I think Mr. Howard screamed. I looked around. The little boy just had his hands in there, had them in there, and gave the gates a shove like that, and they flew open again. I reversed my lever. * * * The car stopped."

The plaintiff introduced Ed. Rice as an expert. He testified that he was night watchman and elevator operator employed at the New York Life Building in Kansas City; that he had had experience in operating elevators in Kansas City for about 10 years; that it was customary in Kansas City not to move the car until the gates were closed; that the car should never move until the door is shut. After the trial and verdict defendant produced the affidavit of Henry A. Kelley to the effect that Rice was not in the employ of the New York Life Building and never had...