Klebe v. Parker Distilling Co.

• Decision Date: 27 November 1907
• Citation: 207 Mo. 480,105 S.W. 1057
• Parties: KLEBE v. PARKER DISTILLING CO.
• Court: Missouri Supreme Court

105 S.W. 1057

207 Mo. 480

KLEBE v. PARKER DISTILLING CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. MASTER AND SERVANT — DUTY OF MASTER — INSPECTION OF APPLIANCES.

It is not only the duty of a master to furnish suitable and reasonably safe means and instrumentalities with which the servant is to perform his labors, but he must maintain them in such suitable and safe condition by continuous inspection, repair, and replacement of defective and worn parts.

2. SAME — ACTIONS FOR INJURIES TO SERVANT — NEGLIGENCE OF MASTER — RES IPSA LOQUITUR — REASON FOR RULE.

The rule of res ipsa loquitur had its origin in necessity, and, where the means and instrumentalities employed by a master are peculiarly within his knowledge and under his control, he can better explain an accident than the injured party, so that the burden of proof rests upon him to disprove negligence.

3. SAME — LIMITATIONS.

The rule of res ipsa loquitur is limited to cases where the accident is one which according to common experience does not usually occur except from some fault of the master himself or of his servants, or some imperfection in its appliances.

4. SAME — APPLICATION OF RULE BETWEEN MASTER AND SERVANT.

Though there may be stronger reasons for applying the rule of res ipsa loquitur to common carriers of passengers than to any other class of persons, yet, where the reason for the rule exists for its application between master and servant, it applies with equal force and effect.

5. SAME — UNIVERSALITY OF APPLICATION.

The application of the rule of res ipsa loquitur between master and servant is not so universal as to some other relations, for the servant usually has as much or more knowledge of the conditions and instrumentalities than has the master, especially where the appliances are under the control and operation of the servant, and in most instances the servant, not only knows the defects of the appliances, but the dangers incident to their use, and is also usually acquainted with the persons who own, operate, and control the premises and machinery, as do those who are interested in him, so that, in case of injury to a servant, the evidence thereof is ordinarily obtainable from those who have knowledge thereof, whether the servant is killed or merely injured; hence, in such cases, the reason for the rule does not exist.

6. SAME — WHEN RULE IS APPLIED.

The rule of res ipsa loquitur should be resorted to only when the reason for the rule obtains, and it applies only to cases of injury to a servant where the facts are not susceptible of direct and positive proof by living witnesses, and then it is applied as the last resort to prevent a miscarriage of justice.

7. SAME — SUFFICIENCY OF EVIDENCE — RES IPSA LOQUITUR — APPLICATION OF RULE.

In an action by a servant for injuries by the fall of an elevator, where it appeared that plaintiff was 23 years old, had previously operated this and similar elevators for more than four years; that he had access to all parts of the building and his duties called him to every floor almost daily; that he used the elevator from one to six times a day; that the elevator consisted of a platform, two upright posts overhead beam to which the cable was attached; that it had no cage or casing to obstruct a view of the cable; that its operation was simple, one end of the cable being attached to the overhead beam and the other to a revolving cylinder in the basement near which the break occurred, and that he and the other employés had perfect knowledge of the elevator and its operation, and the master had nothing to do with it or its operation except through its servants or employés — the doctrine of res ipsa loquitur would not apply, for it was not shown that the cause of the injury was within the peculiar knowledge of the master, or that he was in exclusive charge or control of the elevator at the time of the injury.

8. SAME — INSPECTION OF ELEVATOR.

In an action by a servant for injuries from the fall of an elevator, where it appeared that the engineer in control of the elevator and cable inspected them once or twice a week prior to the date of the accident, and that about three weeks before it the city inspector had made an inspection and posted on the elevator a certificate thereof, a demurrer to plaintiff's evidence was properly sustained.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by George Klebe against the Parker Distilling Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This suit was instituted in the circuit court of the city of St. Louis, seeking to recover damages in the sum of $20,000 for personal injuries received by plaintiff, caused by the breaking of an elevator rope or cable, and thereby permitting the elevator, upon which he was working, to drop from the fifth floor of the building to the basement. In the fall he sustained injuries of a very serious nature, and they are permanent in their character. At the close of plaintiff's evidence in chief, the defendant offered a demurrer thereto, which the court gave, to which action of the court the plaintiff duly excepted, and took a nonsuit with leave. Within proper time he filed his motion to set aside the nonsuit, and prayed for a new trial, which was by the court overruled, and, after properly excepting to the ruling of the court, he appealed the cause to this court. The facts as disclosed by the record are substantially as follows: The defendant was engaged in the wholesale liquor business at No. 213 Market street, in the city of St. Louis, and the plaintiff was one of its employés. The building in which the business was conducted was five stories high. The defendant maintained in its establishment a freight elevator for hoisting and lowering barrels and packages. The elevator was operated by hydraulic power, and the car thereof was suspended from a wire rope or cable provided for that purpose. The evidence on behalf of plaintiff established: That he was 23 years of age when he entered the employ of the defendant in April, 1902. That in the beginning his duties consisted of bottling whisky out of barrels. He was assigned to work on the fourth floor of defendant's establishment. Whisky would be sent up from the first floor in a barrel placed on a freight elevator. The barrel would be rolled on the elevator there by the foreman, Homberg, or under his directions. By means of a starting rope from the first floor, the elevator would proceed to the fourth floor, where it was automatically stopped. Plaintiff would then enter upon the elevator platform and roll the barrel from the elevator to the floor of the fourth story. After the first two months plaintiff was put to general work about the establishment. The care of the elevator was no part of his duty. An engineer was employed for that purpose. What occurred on the day of the accident may be best explained in the language of the plaintiff himself, and we therefore reproduce here so much of the record as bears directly upon this feature of the case: "Q. Now, will you please tell the jury more particularly what happened on the 16th day of September, 1902, in connection with your having been hurt? A. Well, the foreman rang the bell. It was about half past 9 in the morning. He rang the bell for me to take the barrels off the elevator as he sent them up. * * * Q. That is, they were sent up in single barrels? A. Yes, sir. Q. And you had taken off about seven barrels as they came up, one at a time? A. Yes, sir. Q. And you were at work, taking off what you say was the eighth barrel? A. Yes, sir. Q. When the elevator fell? A. Yes, sir. Q. What was on the elevator at the time that it fell? A. One barrel of whisky. Q. And yourself? A. Yes, sir." Plaintiff stated then that he believed a barrel of whisky weighed about 340 pounds. The plaintiff also testified that he had operated a freight elevator about two years and a half prior to the time he entered the employment of defendant, and had also operated defendant's elevator about two years in conjunction with the other employés. The evidence further showed that the cable was from three quarters of an inch to one inch in diameter, and had been in use something over two years prior to the injury; that it was inspected once or twice a week prior to the injury by the engineer in charge of it, and was by him regularly oiled; that two or three weeks prior to the date of the accident the elevator was also inspected by the city inspector, and a certificate of that fact was posted on the elevator by him. The only witness who testified regarding the break of the cable was Hugh F. Homberg, and his testimony will be best stated in his own language, which is as follows: "Q. Now, all you know about this accident yourself is that on the day of the accident, September 16th, the elevator fell? A. Yes, sir. Q. And the day after, when you went down to the cellar, you saw the cable was broken? A. Yes, sir. Q. That is all you know about it — those two facts? A. Those two facts; yes, sir. Q. You don't know, I suppose, under exactly what circumstances the cable broke? A. No. Q. You know it was broken? A. It was broken; that's all I know. Q. And, when you did see this cable broken the day after the accident at the point where it was broken, you saw no evidence of any defect in it, did you? A. How is that? I didn't quite understand you. Mr. Holland: Did you notice the rope the day after the accident with sufficient accuracy to describe it, or was it a casual glance that you took? A. It was a casual glance; that's all I took of the rope. Q. Well, now, can you state whether or not at the time of this accident this cable was well oiled? A. Yes. Q. And what you noticed of the cable the time of the accident and prior thereto did you ever see anything the matter with it? A. No; I didn't see anything the matter with it. The cable broke down in the basement, near the cylinder around which it operated."

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