Hutchinson v. Richmond Safety Gate Co.

• Decision Date: 24 December 1912
• Citation: 152 S.W. 52,247 Mo. 71
• Parties: MARY HUTCHINSON v. RICHMOND SAFETY GATE COMPANY and MONTGOMERY WARD & COMPANY, Appellants
• Court: Missouri Supreme Court

152 S.W. 52

247 Mo. 71

MARY HUTCHINSON v. RICHMOND SAFETY GATE COMPANY and MONTGOMERY WARD & COMPANY, Appellants

Supreme Court of Missouri, First Division

December 24, 1912

Appeal from Jackson Circuit Court. -- Hon. J. G. Park, Judge.

Affirmed.

Warner Dean, McLeod & Timmonds and H. M. Langworthy for appellant Richmond Safety Gate Company.

(1) The court committed error in overruling the demurrer to the evidence interposed at the close of plaintiff's case. (2) The court committed error in refusing to give to the jury the peremptory instruction at the close of the entire case. (a) There was no evidence of negligence on the part of the Richmond Safety Gate Company. Courter v. Mercantile Co., 136 Mo.App. 517; Ryan v. McCully, 123 Mo 636; Gurly v. Railroad, 104 Mo. 223; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Loehring v Westlake Cons. Co., 118 Mo.App. 163; Nugent v. Milling Co., 131 Mo. 256; Smith v. Box Co., 193 Mo. 715; Mueller v. Shoe Co., 109 Mo.App. 506; Hirsch v. Bread Co., 150 Mo.App. 162. (b) Deceased was guilty of such contributory negligence as precludes recovery. McCarty v. Hotel Co., 144 Mo. 397; Clancy v. Cons. Co., 50 N.Y.S. 800; Howell v. Iron & Steel Co., 98 Wis. 35; Darrow v. The Fair, 118 Ill.App. 665; Degnan v. Jordan, 164 Mass. 84; Murphy v. Webster, 151 Mass. 121; Fullwider v. Gas Co., 216 Mo. 582; McGahan v. Transit Co., 201 Mo. 500; Hurst v. Railroad, 163 Mo. 219; Dickey v. Dickey, 111 Mo.App. 304; Hirsch v. Bread Co., 150 Mo.App. 162; Pohlman v. Foundry Co., 123 Mo.App. 219; Whaley v. Coleman, 113 Mo.App. 594; Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 409; Matthews v. Railroad, 227 Mo. 241; Smith v. Box Co., 193 Mo. 715; Elevator Co. v. Carlson, 69 Ill.App. 212; Ward v. Connor, 182 Mass. 170; Laun v. Railroad, 216 Mo. 563; Degonia v. Railroad, 224 Mo. 564. (c) The negligence of the elevator operator will be imputed to deceased. Abbitt v. Railroad, 150 Ind. 498; Jossaers v. Walker, 43 N.Y.S. 891; Hull v. Pool, 50 A. 703; Stroher v. Elling, 97 N.Y. 102; Railroad v. Kistler, 66 Ohio St. 343. (3) The court committed error in giving plaintiff's instruction 1. (a) The instruction does not require the jury to find that the foreman of deceased knew that he was working in the elevator shaft with the car in operation. Bennett v. Lime Co., 146 Mo.App. 565; Wilks v. Railroad, 159 Mo.App. 722. (b) There is no presumption of due care upon the part of deceased. Higgins v. Railroad, 197 Mo. 317; Stackburger v. Grand Lodge, 73 Mo.App. 38; Moberly v. Railroad, 98 Mo. 183. (c) The instruction does not submit the same cause of action as that stated in the petition. Otrich v. Railroad, 154 Mo.App. 420.

Lathrop, Morrow, Fox & Moore for appellant Montgomery Ward & Company.

(1) Under all the evidence in this case there is no liability against this defendant: (a) deceased's negligence as a matter of law precludes recovery; (b) deceased's direction to the elevator operator as to how to run it made him assume the risk of the method suggested by him; (c) there was no breach of any of defendant's legal duties. Barney v. Railroad, 126 Mo. 392; Atherton v. Coal & Coke Co., 106 Mo. 592; Jossaers v. Walker, 43 N.Y.S. 891; Hall v. Poole, 50 A. 703; Sherwood v. Warner, 27 App. D. C. 64. (2) The court erred in compelling the witness Walker to demonstrate the loudness of the call made by the elevator operator when starting down on the trip on which the accident occurred. Sonoma County v. Stofen, 57 P. 681; Star v. People, 63 P. 299; Linehan v. State, 21 So. 502; State v. Hyde, 234 Mo. 256. (3) Plaintiff's instruction number 2 was erroneous. Mokowik v. Railroad, 196 Mo. 571; Higgins v. Railroad, 197 Mo. 317; Adair v. Mette, 156 Mo. 496; Stackberger v. Grand Lodge, 73 Mo.App. 38; Moberly v. Railroad, 98 Mo. 183; Winters v. Supreme Lodge, 96 Mo.App. 1; Morton v. Heidorn, 135 Mo. 609; Ham v. Barrett, 28 Mo. 388; Rapp v. Railroad, 106 Mo. 423; Meyers v. City, 108 Mo. 480; Weller v. Railroad, 120 Mo. 635; Bluedorn v. Railroad, 121 Mo. 258; Schepers v. Railroad, 126 Mo. 665; Payne v. Railroad, 129 Mo. 405; Erhart v. Dietrich, 118 Mo. 418; Haycraft v. Grigsby, 88 Mo.App. 355; Lee v. Knapp, 55 Mo.App. 390. (4) The court committed prejudicial error in permitting plaintiff to call Pletz (the elevator man) as her witness and thereafter admitting the testimony of Fife, Cotter and Grace, for the purpose of impeaching him. Black v. Epstein, 221 Mo. 286; Brosius v. Lead & Zinc Co., 149 Mo.App. 181; Koenig v. Railroad, 173 Mo. 698; Barker v. Railroad, 126 Mo. 143; Rushenberg v. Railroad, 161 Mo. 70; Adams v. Railroad, 74 Mo. 553; Redmon v. Railroad, 185 Mo. 11; McDermott v. Railroad, 73 Mo. 516; Hamburger v. Rinkel, 164 Mo. 407; Roe v. Bank, 167 Mo. 406; Wojtlyate v. Coal Co., 188 Mo. 288.

Bird & Pope for respondent.

(1) The jury did not have to believe a witness even if his evidence is not contradicted. Rinehart v. Railroad, 204 Mo. 276; Porter v. Stock Yards, 213 Mo. 372; Gannon v. Gas Co., 145 Mo. 503; Gregory v. Chambers, 78 Mo. 298; Bradford v. Randolph, 45 Mo. 426; McAfee v. Ryan, 11 Mo. 364; Bryan v. Wear, 4 Mo. 106; Dunlap v. Chem. Wks., 159 Mo.App. 62. (2) The physical facts and exclamations of the elevator man right after the accident, where he kept repeating over and over that he had forgotten to stop at the sixth floor and call out to Hutchinson on this fatal trip like he had on the only trip before, in connection with the fact that he did stop on the only trip down before the fatal trip at the sixth floor and call out to Hutchinson and waited until he answered and got out of the shaft before he again started down, all negative any agreement between the elevator man and Hutchinson, as claimed by defendant. (3) The cases of Appel v. Eaton & Prince Co., 97 Mo.App. 428; Hughes v. Fagin, 46 Mo.App. 37, and Donovan v. Gay, 97 Mo. 440, announce the law as established by the great weight of authority in cases similar to the case at bar, where construction or reconstruction work was going on in elevator shafts, and injuries resulted to workmen at work in said elevator shafts in doing the work of finishing the building and the elevator shaft, and the following are a few of the leading cases in other states on the proposition: Bank v. Hanks, 128 S.W. 14; Board v. Landers, 174 Ind. 460; Butler v. Lewman, 115 Ga. 752; Harmer v. Inv. Co., 68 N.J.L. 332; Schmitt v. Ins. Co., 43 N.Y.S. 318; Anderson v. Mill Co., 42 Minn. 424; Western Electric Co. v. Hanselman, 136 F. 564; Eckman v. Lauer, 67 Minn. 221; Worth Bros. v. Kallas, 162 F. 306. (4) It was the duty of defendant to provide a watchman, or to provide a system of warning or a reasonably safe system of protection for deceased. Koerner v. Car Co., 209 Mo. 141; Haley v. Railroad, 197 Mo. 24; DeWeese v. Min. Co., 128 Mo. 423; Rutledge v. Railroad, 110 Mo. 313; Schroeder v. Railroad, 108 Mo. 322; Reagan v. Railroad, 93 Mo. 352; Gaska v. Car Co., 127 Mo.App. 169; Nelson v. Railroad, 132 Mo.App. 695; Yongue v. Railroad, 133 Mo.App. 141; Mack v. Railroad, 123 Mo.App. 531; Claybaugh v. Railroad, 56 Mo.App. 635; Electric Co. v. Hanselman, 136 F. 564. (5) And in the absence of evidence to the contrary the deceased will be presumed to have been in the exercise of due care. Powers v. Transit Co., 202 Mo. 267; McGahan v. Transit Co., 201 Mo. 501; Eckhard v. Transit Co., 190 Mo. 613; Porter v. Stock Yards, 213 Mo. 372; Riska v. Railroad, 180 Mo. 187; Weller v. Railroad, 164 Mo. 198; Crumpley v. Railroad, 111 Mo. 152.

OPINION

WOODSON, J.

The plaintiff instituted this suit against the defendants in the circuit court of Jackson county, to recover the sum of ten thousand dollars 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 & Company 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. The Richmond Safety Gate Company was a sub-contractor to furnish and install the fire gates; and Montgomery Ward & Company 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 & Company 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 thirty-nine years of age, six feet tall and weighed one hundred and sixty-five 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 three dollars a day as wages. That at his death he left surviving him his widow and two small children.

That he was an employee of defendant Richmond Safety Gate Company the sub-contractor 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 the fifth floor of said building, which...