Hutchinson v. Richmond Safety Gate Co.

• Decision Date: 30 November 1912
• Citation: 152 S.W. 52,247 Mo. 71
• Parties: HUTCHINSON v. RICHMOND SAFETY GATE CO. et al.
• Court: Missouri Supreme Court

152 S.W. 52

247 Mo. 71

HUTCHINSON v. RICHMOND SAFETY GATE CO. et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1912.

Rehearing Denied December 24, 1912.

1. NEGLIGENCE (§ 135) — SUFFICIENCY OF EVIDENCE — CONTRIBUTORY NEGLIGENCE.

In an action for the death of a workman by being struck by an elevator while placing fire doors in the shaft, evidence held to sustain a finding that decedent was not negligent.

2. MASTER AND SERVANT (§ 216) — ASSUMED RISK — NEGLIGENCE.

An employé does not assume the danger arising from another's negligent conduct, and need not presume that other workmen will be negligent.

3. MASTER AND SERVANT (§ 300) — INJURIES TO THIRD PERSONS.

A lessee who took possession of a building while it was being completed by a subcontractor owed to the employés of the subcontractor the duty to use reasonable care in the operation of the elevator, etc., the taking of possession operating as an assumption by the lessee of the invitation extended by the contractors and lessors to the subcontractor to take all necessary employés into the building to complete it.

4. MASTER AND SERVANT (§ 318) — INJURY TO THIRD PERSONS — EMPLOYÉS OF SUBCONTRACTORS.

Both a contractor and subcontractor are liable to their employés and to each other's employés for negligently injuring them.

5. APPEAL AND ERROR (§ 1050) — HARMLESS ERROR — ADMISSION OF EVIDENCE.

In an action for an employé's death by being struck by an elevator while placing safety doors therein, there was no error in requiring the elevator operator to "demonstrate" how loudly he called the warning to decedent that he was coming down; any impropriety in requiring such a demonstration rather tending to ridicule the witness, than to injure defendant.

6. MASTER AND SERVANT (§ 318) — INJURY TO THIRD PERSONS — SAFE PLACE OF WORK.

A lessee of a building who took possession while it was being completed, and acquiesced in the subcontractor's completion of the work, assumed the obligation of the owners and lessors to furnish the subcontractor's employés with a reasonably safe place of work and notify them of known dangers, unknown to such employés.

7. TRIAL (§ 234) — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE.

An instruction in an action for an employé's death that, if the jury "find no evidence or circumstances to the contrary, you may assume that the deceased at the time he was injured was in the exercise of ordinary care," was not erroneous, since, if decedent was not negligent, he was exercising ordinary care, and the jury could so assume.

8. TRIAL (§ 253) — INSTRUCTIONS — PRESUMPTIONS.

It is error to instruct that the jury may presume a certain thing to be true, or that a certain condition existed, when the evidence tends to prove or disprove such thing or condition.

9. WITNESSES (§ 401) — IMPEACHMENT.

A witness remains the witness of the party introducing him for all purposes throughout the case, so that a witness first called by defendant and afterwards called by plaintiff to testify as to certain exclamations could afterwards be impeached by plaintiff by other witnesses, though not originally examined as to such exclamations.

10. PARTIES (§ 27) — JOINDER — TORT ACTIONS.

Under Rev. St. 1909, § 1734 (Rev. St. 1899, § 545), providing that every person having a cause of action against several persons, and who shall be entitled by law to one satisfaction, may sue jointly all or as many of the persons liable as he may think proper, all of the persons liable for the commission of a tort may be joined as defendants, since responsibility for a tort is necessarily several, and no one can legally represent another in committing a tort.

11. TRIAL (§ 29) — CONDUCT OF TRIAL JUDGE.

The trial judge should be careful not to influence the jury by showing by act, conduct, or facial expression that he favors either party.

12. MASTER AND SERVANT (§ 226) — ASSUMED RISK.

A subcontractor engaged in completing a building owed to an employé directed to put fire doors in an elevator shaft while the elevator was being operated the continuing duty to prevent the elevator from descending upon him while doing the work directed; decedent not assuming the risk arising from defendant's neglect to use such precaution.

13. APPEAL AND ERROR (§ 1001) — FINDINGS — CONCLUSIVENESS.

A finding for plaintiff will not be disturbed if plaintiff's evidence tends to support it.

14. MASTER AND SERVANT (§ 238) — CONTRIBUTORY NEGLIGENCE — SELECTION OF WAYS OF DOING WORK.

If there are two ways for a servant to do an act, one more dangerous than the other, both of which are furnished by the master with the intention that the employé may use either, he is not negligent in choosing the more hazardous course.

15. APPEAL AND ERROR (§ 1046) — HARMLESS ERROR — CONDUCT OF COURT.

After the court had overruled objections to testimony, counsel for plaintiff continued to ask the same questions, and defendant's counsel in a respectful manner continued to object thereto, and, after the questions and objections had been repeated several times, the trial judge stated to defendant's counsel that he must admonish them that their duty as counsel was to make fair objections, and he was going to exclude everything that did not go directly to the exact language, and plaintiff's counsel had the right to put the questions in varying forms, and they must not object on that ground, and added, "It is disrespectful to the court, and is a violation of your duty as counsel." Held that, while the judge's severe admonition was without apparent provocation and unjustified, it was not prejudicial error; it not appearing that it was due to any ill feeling toward defendant's counsel or the parties.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Mary Hutchinson against the Richmond Safety Gate Company and others. From a judgment for plaintiff, two of defendants appeal. Affirmed.

The plaintiff instituted this suit against the defendants in the circuit court of Jackson county to recover the sum of $10,000 damages sustained by her for the alleged negligent killing of her husband on February 22, 1908. The defendants F. E. Gloyd and A. M. Gloyd were partners doing business as the Gloyd Lumber Company. Montgomery Ward & Co. and the Richmond Safety Gate Company were corporations. The deceased was injured in the building known as the "Gloyd Building," which was owned by the Gloyds, and the partnership was the original contractor or builder of the building. Richmond Safety Gate Company was a subcontractor to furnish and install the fire gates and Montgomery Ward & Co. was the lessee of the building from the Gloyds, and was in possession thereof as their tenant. However, at the time of the injury the building was not fully completed, especially was that true in regard to the fire gates. They had not been fully installed. A trial was had, and the plaintiff recovered a judgment against both corporations, Montgomery Ward & Co. and the Richmond Safety Gate Company, for the sum of $10,000, but the court sustained a demurrer to the evidence as to the Gloyds, which eliminated them from the case. After moving unsuccessfully for a new trial, the remaining defendants appealed the cause to this court.

The evidence for the respondent tended to show: That she and Orlando W. Hutchinson, the deceased, were husband and wife at the time of and prior to the date of the injury. That at the time of his death he was 39 years of age, 6 feet tall, and weighed 165 pounds. That he was a sober, industrious man, and was a good, careful, and attentive workman, a machinist, car repairer, and carpenter by occupation, and at the time of his injury was earning about $3 a day as wages. That at his death he left surviving him his widow and two small children. He was an employé of defendant Richmond Safety Gate Company, the subcontractor doing the work of installing the fire gates for F. E. and A. M. Gloyd, owners of the building in which deceased was injured. That he was placing safety gates or fire doors in the elevator shaft near the center of said building on the fifth floor, which was nine stories high, and covered about a quarter of a block of ground. That appellant Montgomery Ward & Co. was the tenant and lessee of said building, and had been in charge of and in control of the same about 20 days prior to the injury. That the elevator had been in operation about 10 days; also in charge and under the control of said company. That the deceased went to work for appellant Richmond Safety Gate Company the day previous to his injury. That the first work he did was to hang doors, work on a stairway, and on an alcove on the fifth floor. That on the morning of the day of the injury, some 10 or 15 minutes prior thereto, his foreman, C. T. Thompson, put deceased to work in placing guide rollers on the wall in the opening of the elevator shaft on the fifth floor. That, in order to place and hold the rollers in position, it was necessary for him to drill or finish drilling one or more holes through the brick wall around the shaftway of the elevator, which was about 14 inches in thickness. That the holes were some 8 or 10 inches above the level of the fifth floor of the building, and some 6 to 10 inches back from the face of the doorway of the elevator. That the elevator doorway was in the north side of the elevator shaft, and said hole was east of the doorway or elevator opening in the wall that formed the north wall of the elevator shaft. Bolts were to be inserted in the holes after they were drilled, and nuts placed on each end thereof and screwed against a washer, for the purpose of holding the piece of iron to which the floor roller was fastened on the outside thereof, so that when the gate or door which ran across in front of the elevator was opened and came to said roller, on an incline or slopeway, and struck the roller and pressed it in shape, the gate or door would be pressed against the wall so as to make it fit tight,...