Howard v. The Scarritt Estate Company

• Decision Date: 19 February 1912
• Parties: FRANK HOWARD et al., Respondents, v. THE SCARRITT ESTATE COMPANY, Appellant
• Court: Kansas Court of Appeals

144 S.W. 185

161 Mo.App. 552

FRANK HOWARD et al., Respondents, v. THE SCARRITT ESTATE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 19, 1912

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

Boyle & Howell and Joseph S. Brooks for appellant.

(1) The court erred in refusing to give defendant's peremptory instruction in the nature of a demurrer to the evidence at the close of plaintiff's evidence and at the close of the whole case. If there is no evidence tending to establish the cause of action alleged in the petition, the court has but one duty to perform--and to so declare by instruction. Davis v. Thompson, 209 Mo. 192; Sissel v Railway, 214 Mo. 515; Byerly v. Light Co., 130 App. 593. (2) There is a variance between the petition and the case proved. The case alleged in the petition is to the effect that plaintiffs' son "fell out of said car," whereas the evidence tended to show and did show that plaintiffs' son voluntarily left the elevator. Peterson v. Railway, 211 Mo. 498; Jones v Cooperage Co., 134 Mo.App. 324; Giato v Railroad, 132 Mo.App. 363; Feed Co. v Railroad, 129 Mo.App. 498. (3) Instruction number one given for plaintiff is erroneous in this that the issue submitted to the jury is broader than the issue declared on in the petition. In the petition it is alleged that plaintiffs' son "fell out of said elevator car," whereas the issue made by the instruction is: that the said son, "either tried to get out of, or, losing his balance, fell from the said elevator car." Grojean v. Darby, 135 Mo.App. 586; Davidson v. Transit Co., 211 Mo. 320; Crow v. Railroad, 212 Mo. 589; Kellogg v. Kirksville, 132 Mo.App. 519; Flahetry v. Transit Co., 207 Mo. 318; Smith v. Railway, 126 Mo.App. 120; Percell v. Railway, 126 Mo.App. 43; Huss v. Bakery Co., 210 Mo. 44. (4) Defendant's refused instruction number 6 declared the law correctly, and the court erred in refusing it. The court instructed the jury that plaintiff could recover if their son "tried to get out of" said elevator car. Cornovski v. Transit Co., 207 Mo. 263; Miller v. Railway, 134 S.W. 1045. (5) The court erred in refusing to grant appellant a new trial on the ground that it was shown in the evidence that witness Ed. Rice who testified as an expert in plaintiff's behalf, was shown on the hearing of the motion for a new trial to have deliberately falsified about a material matter in the case. (6) Instruction numbered four given for the plaintiffs was erroneous in this that it wrongly declared the measure of damages--It does not limit plaintiff's recovery to the minority of the son. Calcatarra v. Iovaldi, 123 Mo.App. 354; Parsons v. Railroad, 94 Mo. 286; McGown v. Steel Co., 109 Mo. 518; Leahy v. Davis, 121 Mo. 227; Hickman v. Railroad, 22 Mo.App. 344; Frank v. St. Louis, 110 Mo. 516; Hennessy v. Brewing Co., 145 Mo. 104. (7) There was no evidence in the case showing the measure of the damage sustained--nothing upon which the jury could base the amount of the verdict. Dunn v. Railroad, 21 Mo.App. 204. (8) The damages are excessive.

Ellis, Cook & Barnett for respondents.

Carriers of people by elevators in buildings are common carriers of passengers and bound by the same rules of law as to care and otherwise as are railroads or street railways or other carriers. Lee v. Knapp, 155 Mo. 610; Becker v. Building Co., 174 Mo. 246; Goldsmith v. Building Co., 182 Mo. 597; Luckel v. Bldg. Co., 177 Mo. 608; Orcutt v. Bldg. Co., 201 Mo. 424. One who takes passage with a carrier with the latter's consent is a passenger even though no compensation is to be paid and the service is gratuitous. Lemon v. Chanslor, 68 Mo. 340; Orcutt v. Bldg. Co., 201 Mo. 424; Shearman & R. on Neg. (3 Ed.), sec. 262; 5 Am. & Eng. Ency. (2 Ed.), p. 507.

OPINION

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, Missouri, 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 ten or fifteen 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 too. 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 twelve or thirteen 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 ten 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 been.

The gravamen of the charge in the petition on which the cause was tried after preliminary allegations leading up to it, is as follows: "That thereafter, said operator, being then in charge and control of said elevator car, negligently turned on or applied the power moving the same, and caused said elevator car to suddenly ascend before he, the said operator had closed the said sliding doors opening therefrom to said second floor, and while said doors were still widely apart; that because thereof, the said William C. Howard, being so young as not to understand his peril, and because of said negligent act of the defendant and its said operator in leaving said sliding doors...