Jenkins v. Missouri State Life Ins. Co.

• Decision Date: 14 March 1934
• Parties: Maude E. Jenkins v. Missouri State Life Insurance Company, Appellant
• Court: Missouri Supreme Court

69 S.W.2d 666

334 Mo. 941

Maude E. Jenkins v. Missouri State Life Insurance Company, Appellant

Supreme Court of Missouri

March 14, 1934

Appeal from Jackson Circuit Court; Hon. Thos. J. Seehorn Judge.

Affirmed (on condition.).

Allen May, Williams, Nelson & English and McAllister Humphrey, Pew & Broaddus for appellant.

(1) The court erred in giving Instruction 1 (modified). (a) Said instruction is erroneous for the reason that it did not require the jury to find that the failure to stop the elevator on a level with the third floor rendered plaintiff's exit not reasonably safe. Blackwell v Hill, 76 Mo.App. 46; Wasson v. Sedalia, 236 S.W. 399; Quinlan v. Kansas City, 104 Mo.App. 616; Salmon v. Trenton, 21 Mo.App. 182; Young v. Kansas City, 45 Mo.App. 600; Bayne v. Kansas City, 253 S.W. 116; Falder v. B. Nugent Dry Goods Co., 251 S.W. 138. (b) Said instruction is further erroneous in that it, in effect, made appellant an insurer. (c) It is further erroneous in that it did not require the jury to find that appellant in the exercise of due care, should have anticipated that plaintiff was likely to be injured if the elevator was not level with the floor. Nephler v. Woodward, 200 Mo. 179. (2) The court erred in refusing to permit appellant's witness and manager, Vandervoort, to testify that he did not go to the hotel or undertake to exercise any control or management over the same until January 2, 1929, it being competent for the purpose of refuting the previous testimony of plaintiff's witness, Elstun. (3) The amount of damages awarded in the verdict is excessive and, in any event, this court should require a remittitur by plaintiff. Davenport v. Electric Co., 242 Mo. 111, 145 S.W. 454; Hulse v. St. Joseph Ry. Co., 214 S.W. 150; Parks v. United Rys. Co., 235 S.W. 1067; Mahmet v. Am. Radiator Co., 294 S.W. 1014.

Russell Field and Mosman, Rogers & Buzard for respondent.

(1) Modified Instruction 1 was properly given. (a) The submission in the instruction that the defendant "negligently and carelessly failed to bring the elevator reasonably to the level of the third floor" and that "as a direct result of the negligent failure . . . plaintiff was caused to stumble over the projecting floor level" is equivalent to a submission that the exit from the elevator was not reasonably safe for persons to use. Tueteberg v. St. Louis Pub. Serv. Co., 41 S.W.2d 956; Rearden v. Ry. Co., 215 Mo. 105, 114 S.W. 961; Cooper v. Century Realty Co., 224 Mo. 709, 123 S.W. 848; Morton v. Southwestern Tel. Co., 280 Mo. 360, 217 S.W. 831; York v. City of Everton, 121 Mo.App. 640, 97 S.W. 607; Goldsmith v. Holland Bldg. Co., 81 S.W. 1112. (b) The submission and finding of negligence was equivalent to a submission and finding that the exit from the elevator was likely to cause plaintiff to stumble and injure herself, and was, therefore, unsafe and dangerous for persons to use. (c) The instruction did not make the defendant an insurer. Rearden v. Ry. Co., 215 Mo. 105, 114 S.W. 961; Messing v. Drug Co., 18 S.W.2d 408; Kamer v. Ry. Co., 32 S.W.2d 1075; Davis v. Buck's Stove & Range Co., 49 S.W.2d 47; Nephler v. Woodward, 200 Mo. 179, 98 S.W. 488; Morton v. Southwestern Tel. Co., 280 Mo. 360, 217 S.W. 831; Cooper v. Century Realty Co., 224 Mo. 709, 123 S.W. 848. (d) There was no contention at the trial that the failure to bring the elevator reasonably to a level with the third floor was not dangerous. Tueteberg v. St. Louis Pub. Serv. Co., 41 S.W.2d 956; Fields v. Railroad Co., 80 Mo. 203; Herriman v. Railroad Co., 27 Mo.App. 435; Warren v. Curtis & Co. Mfg. Co., 234 S.W. 1029. (e) All instructions must be read together. Instruction 4 specifically required the jury to find that defendant failed to bring the elevator to a "reasonably safe level" with the third floor. Blackwell v. Hill, 76 Mo.App. 46; Hicks v. Vieths, 46 S.W.2d 608; Parton v. McAdoo, 68 Mo. 327; Patterson v. Evans, 254 Mo. 293, 162 S.W. 179. (2) No error was committed in the reception and rejection of the testimony of L. L. Vandervoort. (3) The amount of damages is not excessive.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries. Plaintiff was a guest at the Alcazar Hotel in Kansas City and was injured by a fall when she stepped out of the elevator there. Plaintiff's petition charges, as negligence, failure to bring the elevator to a level with the third floor so that plaintiff might alight therefrom with reasonable safety, by reason of which she was caused to fall and was injured. Plaintiff had a verdict for $ 10,000, and from judgment entered thereon defendant has appealed.

Considerable evidence appears in the record upon the issue of whether defendant was actually in possession of and operating the hotel at the time. However, defendant apparently concedes that the evidence was sufficient to make this a jury question and assigns no error as to the submission of this matter. There were two accounts concerning the accident: One, given by plaintiff, and the other, given by the operator of the elevator. Plaintiff testified that she got in the elevator to go from the lobby to the third floor; that when the operator stopped the elevator there she glanced down before starting out, but that the elevator and hall were dimly lighted and she did not notice whether or not the elevator floor was level with the floor of the hall. She said that, when she attempted to step out, she struck her foot against the wall of the elevator shaft which caused her to plunge "right out through the opening of the elevator door into the hall," breaking her right arm at the elbow joint. The operator of the elevator said: "I took her up to the third floor, and the car was level with the floor, and she got off and when she got off she turned around and started to say something to me, and when she turned back she fell over."

The elevator was run by electricity and could be operated by the guests by means of an automatic button, which would cause it to move to and stop at the desired floor. Plaintiff said that she never had used the elevator in this manner. When the regular operator was in charge he operated it by a lever. He said that the gate of the elevator and the doors of the elevator shaft would not open unless "you get level with the floor" and that "if you get below the floor or above it you couldn't open the door." He said, however, that the elevator could be stopped between floors by means of the lever and also that "if you were running the car and they should blow a fuse or something up above, why, you would naturally -- it would stop below the floor, and at that time I would tell them, if there was anybody on there, to watch their step." He also said, on cross-examination, that on numerous occasions he had said to people "watch your step" or "watch out," or "watch the floor," and admitted that the purpose of such a statement "was to keep the party from tripping over the elevator floor or the wall of the building." He said, however, that he did not say "watch your step" to plaintiff on this occasion and insisted that the car floor was then level with the third story floor.

Defendant makes no specific assignment of error concerning the refusal of its demurrer to plaintiff's evidence. It does make an assignment that plaintiff's verdict is not supported by the evidence and argues in support thereof that the operator could not have been negligent because the evidence shows "that he had no control over the position of the elevator when the doors were opened." Defendant assumes that the evidence is conclusive that the doors could not be opened unless the elevator floor was flush with the floor of the hallway. Defendant overlooks the admission of the operator, above quoted, that the elevator was at times stopped below the floor and that at such times he would tell passengers to "watch their step." Plaintiff's evidence tended to show that the elevator was not flush with the hallway and that the doors were opened. Defendant says even that only tends to show that the elevator might have been out of adjustment and not that the operator was negligent. But, if it was out of adjustment was he not negligent in opening the doors without warning before he brought it to a reasonably safe level? Whether on this occasion the operator did bring the elevator to the third floor level or was negligent in his operation of it was for the jury. For a very similar case of negligence in failing to stop an elevator at a reasonably safe level with the floor of the building see Perrault v. Emporium Department Store (Wash.), 128 P. 1048, where a plaintiff was caused to fall by the difference in levels.

Defendant's principal contention is that plaintiff's Instruction No. 1 was erroneous for the following reasons: "That it did not require the jury to find that the failure to stop the elevator on a level with the third floor rendered plaintiff's exit not reasonably safe; . . . that it, in effect, made appellant an insurer; . . . that it did not require the jury to find that appellant in the exercise of due care, should have anticipated that plaintiff was likely to be injured if the elevator was not level with the floor." This instruction was as follows:

"The court instructs the jury that if you find and believe from the evidence in this case that the defendant, Missouri State Life Insurance Company, was in the possession, management and control of the 'Alcazar Hotel,' mentioned in evidence, at the time plaintiff was injured (if she was), and if you further find that plaintiff was a guest of said hotel and that on the 1st day of January, 1929, while a guest of said hotel, if so, and while she was alighting and attempting to alight from the elevator mentioned in evidence on the...