Katz v. Development Co.
| Decision Date | 04 March 1929 |
| Docket Number | No. 16481.,16481. |
| Court | Missouri Court of Appeals |
| Parties | ETHEL KATZ, RESPONDENT, v. NORTH KANSAS CITY DEVELOPMENT CO., APPELLANT.<SMALL><SUP>*</SUP></SMALL> |
Appeal from the Circuit Court of Jackson County. — Hon. E.E. Porterfield, Judge.
AFFIRMED.
Cyrus Crane, Kenneth Mc. DeWeese and Richard S. Righter for appellant.
Trusty & Pugh for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5500 and defendant has appealed. This is the second appeal in the case. [See Katz v. North Kansas City Devl. Co., 258 S.W. 752.]
Additional facts were proved by plaintiff at the latter trial. At this trial plaintiff put upon the stand none of the witnesses who testified for her in the former trial but the testimony of her witnesses taken at the former trial was introduced in evidence by the defendant. At this trial plaintiff introduced the depositions of witnesses Fleck and Murphy on the question of liability. Defendant then introduced the testimony of witnesses Deines, Jackson and Dolgenow, taken at the former trial. At this trial the case was submitted to the jury by the plaintiff upon the theory that a custom or practise was permitted by the defendant in its warehouse whereby the elevator was allowed to be away from the first floor with the doors open.
On this question plaintiff's witness, Fleck testified that he was employed by the Missouri Can Company; that this company stored cans in the building in question; that he had been working around the warehouse off and on for a year and a half before Katz was killed; that sometimes he would be there every day and other times only three or four days in every week; that he was there about one-third of the time; that on the day Katz fell into the elevator shaft and shortly prior thereto he was on the dock outside of the building south of the south door of the warehouse on the west side of the building and there saw Katz, who asked him "where Mr. Storms was;" that the witness replied that he did not know, but "supposed" Storms was upstairs. The witness then went into the building and to a drinking fountain therein located near the southwest corner of the freight elevator. Shortly thereafter Katz came in through the driveway. The witness was then taking a drink and Katz asked him how he, Katz, could "get up to the third floor." The witness told Katz, "go right over there and take the stairway" (pointing in the direction of the stairway at the corner of the passenger elevator). Immediately after he gave Katz these directions the witness stooped over to get another drink, and saw him take the first two steps. The witness was then twenty-five or thirty feet away from the elevator shaft. Shortly thereafter he looked up and observed a glimpse of both of Katz's legs from the knee to the foot, going down in the shaft, the rest of the body apparently being too far into the shaft to be seen. The witness testified that he did not see even this part of Katz's body clearly but "just an image of it;" that one of Katz's legs "was bent and the other just kind of leaving the floor;" that two or three seconds of time transpired from the time Katz made the last inquiry of him until the witness saw the image of Katz's legs going into the shaft. Katz hit the bottom of the shaft and the witness heard a groan. The witness testified at the time Katz fell the elevator was at the second or third floor.
The witness further testified that he had never seen Katz before; that the stairway could not be seen from where the witness stood; that it was necessary to go around by the passenger elevator in order to reach the stairway; that many people took this passageway by the passenger elevator to the office; that he did not see Katz from the time the latter took two steps from the drinking fountain until he saw Katz's legs as he was falling into the elevator shaft, so he did not see whether Katz opened the doors to the elevator. However, the witness testified that the doors were of corrugated metal and when they were opened they made "an awful racket;" that everything was quiet at the time Katz fell and that he heard no noise although his hearing was good. From this testimony an inference arises that Katz did not open the doors to the shaft.
In reference to the practice mentioned in the former opinion of moving the elevator from floor to floor by pulling the rope in the shaft and leaving the doors to the shaft open, the witness testified that in order to get the elevator from floor to floor it was necessary merely to reach into the shaft and pull the cable or rope. There is some question as to whether the witness, in testifying as to the practice referred to, had in mind the freight elevator or the passenger elevator, but we think it fairly appears that the witness was referring to the shaft into which Katz fell or the elevator operated in that shaft. This appears to be made reasonably certain by the cross-examination of the witness during which considerable of his testimony on direct examination was gone over in connection with which he was asked in reference to the passenger elevator.
The witness testified on direct examination that he had seen persons reach in the shaft and pull the cable to bring the elevator to the floor upon which the person pulling the cable was located; that he had seen this done many times; that the elevator was operated in this manner more times than not; that he had "seen Storms and several of them other fellows there do it;" that he had seen one Murphy, who was an employee of the defendant, operate the elevator in this way; that he had seen Storms do it many times; that he had seen Storms take the elevator up from the first floor and had seen him stand on the first floor and bring it down from the top floor; that he had seen the doors standing open at various floors; "about as many times as I have closed;" that "the most of the times" he had observed the doors at the first floor open; that he had sometimes seen the doors closed during the daytime; that they would be closed up at quitting time; that when the elevator would be moved upward from a floor the doors were left open "most of the times;" that he had observed the elevator moving away from the floor where it was without anyone on it "many times;" that this had been done all of the time that he was there; that he had seen Murphy moving the elevator from floor to floor "many times" and that he had also seen one Boyd use the elevator, "the same way that Storms used it." The evidence shows that Boyd was employed by the Missouri Can Company and was about the warehouse considerable of the time on the second floor and in the office on the first floor, but that he was in the office most of the time. The witness further testified that Storms was present when others used the elevator in the manner indicated; that he had seen Storms on the first floor and on the second floor when others had operated the elevator in such manner; that he had never heard Storms forbid anyone to so use the elevator, but that Storms said nothing.
On cross-examination the witness testified that the stairway from the first floor to the third floor was not locked; that the witness did not use the passenger elevator in going up and down but used the stairs. He further testified that he had seen the doors in an opened condition only of a morning; that he had not seen Storms take customers up on the passenger elevator "so very many times;" that he was not around when the doors were closed and did not know how they were opened under those circumstances; that the only times that he saw the elevator moved by one reaching in and pulling down on the rope was when the doors were open. He further testified that he had seen storms and Murphy use the elevator but had never seen Boyd use it; that when persons would come in with automobiles or other merchandise to be stored
On re-direct examination the witness testified that he did not see the doors open every morning, but only some mornings; that he did not stay on the first floor of the warehouse all of the time and was not there every time a man was taken up in the elevator, because part of the time he was on the second floor and part of the time out in the car from which cans were being removed; that he was also working in another nearby warehouse. For these reasons he was only on the first floor occasionally. However, we take it from the testimony that the procedure that he testified to was followed when he was there, although he was not there all of the time. He testified that he had observed that the practice, in pulling the rope to bring the elevator to a certain floor, was carried on in reference to the second and third floors as well as the first.
Murphy, in his deposition, testified that he was employed by the defendant at the time his deposition was taken and at the time Katz was injured; that the elevator was operated by Storms and Mason. Mason, the evidence shows, was the manager of the warehouse and Storms the warehouseman who had charge of the warehouse, the storing and removing of the goods and caring for customers. Murphy testified that "when you left the elevator and closed the doors they closed up, then you would have to put a wrench or some kind of a tool in them to pry them open" "from the outside;" that the witness seldom used the elevator; that the doors to the elevator were never closed when the elevator was on the first floor; that they made "quite a bit of noise" when they were opened; that the noise could be heard in the office if there were no truck...
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