Jones v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 10 September 1951
• Docket Number: No. 42271,No. 2,42271,2
• Parties: JONES v. TERMINAL R. R. ASS'N OF ST. LOUIS
• Court: Missouri Supreme Court

Page 473

242 S.W.2d 473

JONES v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 42271.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1951.

Motion for Rehearing or Transfer to Court en Banc Denied Oct. 8, 1951.

Chelsea O. Inman and Charles E. Gray, St. Louis, for appellant.

Warner Fuller, Arnot L. Sheppard, George P. Mueller, and John P. Montrey, all of St. Louis, for respondent.

BARRETT, Commissioner.

In July 1945 the plaintiff, Robert C. Jones, then seventeen years old, was employed by the Terminal Railroad Association. It was his duty to load hand trucks in the basement with mail, push the trucks onto one of the elevators and take the mail to the 'topside.' On July 19th he was injured on one of the elevators after he had delivered a truckload of mail and placed the truck on the elevator for the purpose of returning to the basement. Upon the trial of his action for $13,500 damages under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., the jury returned a verdict for the Terminal Railroad and Robert appeals, claiming that the trial court prejudicially erred in the admission of evidence and in instructing the jury. The Terminal claims that there was no prejudicial error either in the admission of evidence or in the instructions and in any event that one of the instructions complained of could not be prejudicially erroneous because upon the record Robert was not entitled to submit the defendant's liability upon the res ipsa loquitur doctrine.

Robert was not operating the elevator; it was stipulated that another young man, Vincent Pijut, pulled the chain that started the elevator, although Robert said that Pijut was not on the elevator when he was injured but was in the basement. In describing the occurrence Robert said, 'As the elevator started to descend it seemed to give a jump, a jerk. I lunged forward. Naturally, I didn't want to fall; there is about a fifteen foot drop, so I grabbed the first thing I could get a hold of. When I grabbed it I got hold of the steel gate. As the elevator went down this gate swung up. It had me strapped across here (indicating) against the concrete floor. I was hanging on it. The elevator went on down there. I pulled this hand loose, * * *. I got this left free (indicating) to pull myself up, to get out of the elevator. * * * Just as I reached this hand up my legs were hanging underneath the floor, because I was in position to get myself all the way up, it caught me then, right as it comes up like that (indicating). My legs were like that (indicating). * * * I never knew it was coming up. If I had, I would have got my legs out of there.' On cross-examination he said, 'Well, as the elevator was descending down, it sort of was closing, you would call it, jerking or settling down. It gave a jump like that (illustrating), and lunged forward, was the way I went, but the elevator was sort of settling down. It gave a little jerk, hard enough to throw me off balance.' In short, it was Robert's testimony that the elevator jumped or jerked as it descended and threw him off balance and to avoid falling he caught hold of the safety gate and while he was entrapped by the gate the elevator unexpectedly ascended and crushed his legs.

It is first urged by the Terminal that Robert was not entitled to a res ipsa loquitur submission of his cause because the described circumstances do not constitute 'such an unusual occurrence as would warrant a jury in inferring that the misadventure would not have happened except for defendant's negligence.' It is said in this connection that there is no proof that the defendant's knowledge of the cause of Robert's injury was superior to his knowledge of the cause. But res ipsa loquitur has been applied to the unexplained starting of an elevator by a fellow employee and its subsequent fall. Meade v. Missouri Water & Steam Supply Co., 318 Mo. 350, 300 S.W. 515. The rule has been applied to the sudden jerk and jolt of busses and streetcars, Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506; Semler v. Kansas City Public Service Co., 355 Mo. 388, 196 S.W.2d 197, as well as to the sudden jerk of an escalator, Hartnett v. May Department Stores Co., 231 Mo.App. 1116, 85 S.W.2d 644, and its stopping with a sudden and unusual jerk. Hesemann v. May Department Stores Co., 225 Mo.App. 584, 39 S.W.2d 797. In Klebe v. Parker Distilling Co., 207 Mo. 480, 105 S.W. 1057, 13 L.R.A.,N.S., 140, a cable broke and the elevator fell but the court held, even though the occurrence was one which according to common experience does not usually occur except by reason of some negligence on the part of the master, that the elevator and instrumentalities employed by the defendant were not peculiarly within its knowledge and control so that the defendant was in a better position than the plaintiff to explain the cause of the accident. That case has been explained upon the theory that the employee 'as a rule, has as much or more knowledge of the place where and the instrumentalities with which he works as the master, and is in most instances acquainted with the persons who own, operate, manage or control the premises or instrumentalities involved' and the court 'expressed the opinion that the evidence in the present case indicated that neither the business premises nor the elevator itself was 'peculiarly within (defendant's) knowledge' or under its control and on that account it could not be said that defendant was in a much better position to explain the cause of the accident than plaintiff was.' Annotation 169 A.L.R. 953, loc. cit. 970. But there the plaintiff was a mature adult who had operated the elevator in question for more than four years. In this case Robert was but seventeen years of age and had been employed by the Terminal but nine or ten days prior to the date of his injury and so it is not possible to say that he was in a position, comparable to his employer's, to explain the cause of the sudden jerk or unexplained ascension of the elevator. In addition in this case the employees had no duties with respect to the elevators except to use them. There were several elevators and the defendant's evidence shows that specialized employees maintained, repaired and serviced them and inspected them every two hours. As was said of the unexplained starting of a sausage grinder in Gordon v. Muehling Packing Co., 328 Mo. 123, 133-134, 40 S.W.2d 693, 697, 'the automatic and abnormal starting of a machine when it ought to remain at rest is evidence of negligence on the part of the master, and, if the further facts appear that the installation, upkeep, and duty to inspect and repair the machine and appliances are with the master, and not with the injured servant, who is ignorant of and without opportunity to know the mechanism and how same is operated, and when the defect and cause thereof ar peculiarly within the knowledge of the master, then the doctrine mentioned applies.' The defendant claimed and its evidence tended to show that there was no negligence on its part or on the part of any of its employees but its evidence shows that all the possible knowledge of the elevator, its mechanism and operation and any possible explanation of any unusual occurrences were within the defendant's superior knowledge and not within the plaintiff's knowledge.

In order to further illustrate that the doctrine of res ipsa loquitur is not applicable to the facts of this case, the defendant points to that part of Robert's testimony in which he described the operation of the elevators. He said, 'If you take these lines there, hanging there, that raise the elevator--you get a hold of them and pull down in the usual manner--they will ascend nice and proper, the way they should. If you give a real tough jerk on them you will take off with a bang, and it will seem to settle down.' As we have said, it was stipulated that a fellow employee, Pijut, pulled the chain which opened the valve and started the elevator on its descent. It is then argued from these facts that the cause of the elevator's starting to descend is known and that it was the result of an 'intentional act' on Pijut's part, and therefore the doctrine is inapplicable. The cases relied upon by the defendant do not illustrate that 'intentional human action' necessarily makes the doctrine inapplicable or establish any such principle as a part of the rule. In Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13, 20, a motor boat overturned and it was held, in the circumstances, that res ipsa loquitur did not apply. In pointing out the various reasons why under the proof the doctrine was inapplicable the court did say, among other things, 'In other words, did the overturn of the boat result from the voluntary act of a third party?' In Hart v. Emery-Bird-Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, it was held that the doctrine was inapplicable when a pile of awnings, which customers could have disarranged, fell from a counter. In both cases some third person, not an agent of the defendant, may have been the cause of the occurrence but the cases do not hold that a negligent intentional act on the part of an employee is a defense or makes inapplicable the res ipsa loquitur doctrine. There is no evidence in this case that Pijut intentionally started the elevator with a 'jerk' or that he intentionally caused it to unexpectedly and suddenly ascend. In this action under the Federal Employers' Liability Act it could be pointed out, without determining its effect, that the fellow-servant rule has been abolished. Southern Ry. Co. v. Derr, 6 Cir., 240 F. 73, 75. It is our view of the record that it meets the essential requirements of the...