Howard v. Scarritt Estate Co.

Decision Date31 March 1916
Docket NumberNo. 17629.,17629.
Citation267 Mo. 398,184 S.W. 1144
PartiesHOWARD et ux. v. SCARRITT ESTATE CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Frank Howard and wife against the Scarritt Estate Company. From an order granting a new trial, defendant appeals. Affirmed.

Plaintiffs, who are husband and wife, sued the defendant, a corporation, engaged in Kansas City in operating an office building, for the alleged negligent killing of their infant son in a passenger elevator in said building. Upon trial the jury found for defendant whereupon the court granted plaintiffs a new trial and defendant, appealed. The amount sued for being $10,000 and within our jurisdiction, the case is here. This is the second appeal in this case. Heretofore it was tried and plaintiffs had judgment for $5,000. Thereon an appeal was taken to the Kansas City Court of Appeals, wherein for errors, the case was reversed and remanded. Howard v. Scarritt Estate Co., 161 Mo. App. 552, 144 S. W. 185. The facts upon the instant appeal, so far as they are pertinent, do not so greatly differ from those shown upon the first trial and set out in the report of this case in Howard v. Scarritt Estate Company, supra, as to make it necessary to again use space in reciting them. They have been published once and the curious may read them in the book cited above. Upon the instant trial the testimony tended to show that the operator of the elevator in question had given the two sliding doors (which closed the entrance to the elevator shaft) a shove with one hand while he threw the starting lever over with the other. The starting apparatus was equipped with five electrical contact points, the office of which was to start the car with different degrees of rapidity, increasing till the last point of contact was reached, which gave a very rapid movement to the car. The effect of such contemporaneous closing of the sliding doors and throwing on of the speeds so rapidly accelerated the car as that it was always some six or eight feet above the floor before the doors had time to become closely shut. There was some testimony offered by plaintiffs from the operator of the elevator in question, as well as from other witnesses engaged in operating elevators in the same building and in similar buildings, that the method thus pursued in closing the doors in question in the instant case and in contemporaneously starting the elevator cage was the usual and customary way of so operating these appliances. Upon the trial an instruction was offered by defendant and given by the court upon this phase of the case. This instruction will be found set out at length in the opinion herein in connection with the discussion of its alleged incorrectness. The court, also, upon the trial of the case, gave an instruction upon the theory of the alleged contributory negligence of plaintiffs herein in failing to properly guard the child while he was riding in the elevator and just before he fell through and was killed. This instruction will also be found in the opinion, and so we need not set it forth here.

Boyle & Howell, Joseph S. Brooks, and George L. Boyle, all of Kansas City, for appellant. Ellis, Cook & Barnett, of Kansas City, for respondents.

FARIS, P. J. (after stating the facts as above).

The new trial herein was granted "on account of error in instructions." Of this error, or errors, no further and more definite specifications are furnished us. Counsel for appellant broadly urge that instructions 7 to 13, inclusive, given for defendant, are each the law, citing us as proof of the faith which is in them to the case of Minnier v. Railroad, 167 Mo. loc. cit. 120, 66 S. W. 1072, and to two cases in the Courts of Appeals: Spencer v. Bruner, 126 Mo. App. loc. cit. 102, 103 S. W. 578, and Brunke v. Telegraph Co., 115 Mo. App. loc. cit. 39, 90 S. W. 753. These cases are not, in our view, authority sufficient to sustain all seven of the instructions complained of; some one or more of which must have been held in mind by the court below.

Among others the court nisi gave for the defendant this instruction, numbered 10 in the record, to wit:

"The court instructs the jury that, inasmuch as the son of plaintiffs was a child of tender years, it was their duty at all times to guard and look after him, and that it was the duty of the parents to take care for their child in proportion to the dangers of his surroundings, and if you believe from the evidence that plaintiffs, or either of them, failed to watch and care for their child in manner and form as defined by these instructions in the elevator in question, and that such failure on the part of the parents, or either of them, contributed in the least degree to cause the accident to their child, then plaintiffs cannot recover in this suit, and it is your duty to return a verdict for defendant."

We think it is evident from a mere casual reading that the above instruction is erroneous, and that the giving of it alone was a sufficient...

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