Klebe v. Parker Distilling Co.

• Decision Date: 27 November 1907
• Parties: GEORGE KLEBE, Appellant, v. PARKER DISTILLING COMPANY
• Court: Missouri Supreme Court

105 S.W. 1057

207 Mo. 480

GEORGE KLEBE, Appellant, v. PARKER DISTILLING COMPANY

Supreme Court of Missouri, First Division

November 27, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood Judge.

Affirmed.

Rassieur Schnurmacher & Rassieur for appellant.

(1) Since plaintiff's duties required him to work upon the elevator platform, it was incumbent on defendant to see that the elevator was safely suspended. This involved the furnishing of a rope or cable of sufficient strength, and a continuous duty of inspection on the part of defendant, to see that it remained so. Labatt on Master and Servant, sec 7; Wendler v. Peoples House Furnishing Co., 165 Mo. 536; Pauck v. Dressed Beef Co., 159 Mo. 467; Settle v. Railroad, 127 Mo. 336; Blanton v. Dold, 109 Mo. 75. (2) Elevator cables of sufficient strength, and under reasonable inspection, when subjected to merely ordinary and usual strain, do not break. Therefore, the proof in this case that the elevator cable parted under an ordinary load, and precipitated plaintiff to the bottom of the elevator shaft, made out a prima-facie case under the doctrine of res ipsa loquitur, and shifted the burden of the evidence upon defendant to explain the accident, if it could. Blanton v. Dold, 109 Mo. 74; Turner v. Haar, 114 Mo. 346; Sackewitz v. American Biscuit Mfg. Co., 78 Mo.App. 151; Johnson v. Railroad, 104 Mo.App. 592; Scott v. Dock Co., 3 Hurl. & Colt. 596; Kearney v. Railroad, L. R. 5 Q. B. 411, L. R. 6 Q. B. 759. For the application of the doctrine to elevator cases, see: Ellis v. Waldron, 19 R. I. 369; Fairbank Canning Co. v. Innes, 24 Ill.App. 33, affirmed, 125 Ill. 410; Gerlach v. Edelmeyer, 88 N.Y. 645; Hartford Deposit Co. v. Sollitt, 172 Ill. 222; Springer v. Ford, 189 Ill. 430; Treadwell v. Whittier, 5 L. R. A. 498. Also see: Labatt on Master and Servant, sec. 834, and cases cited in notes 1 and 8.

Seddon & Holland for respondent.

The court did not err in giving a peremptory instruction at the close of the testimony of appellant (plaintiff), because while appellant showed that he was injured by the breaking of a rope, he did not show that the rope broke on account of any defect, much less on account of a defect the existence of which would have been known to respondent by the exercise of ordinary care. The doctrine of res ipsa loquitur has no application to a case of this kind between master and servant. Bowen v. Railroad, 95 Mo. 268; Copeland v. Railroad, 175 Mo. 650; Oglesby v. Railroad, 177 Mo. 272; Fuchs v. St. Louis, 167 Mo. 620; Bohn v. Railroad, 106 Mo. 429; Patton v. Railroad, 179 U.S. 658; Railroad v. Barrett, 166 U.S. 617; Shandrew v. Railroad, 142 F. 320; Westinghouse v. Hemlich, 127 F. 92; Reily v. Campbell, 59 F. 990; Ash v. Verlending, 154 Pa. St. 246; Stackpole v. Wray, 74 A.D. 340; Searles v. Railroad, 101 N.Y. 662; Dobbins v. O'Brien, 119 N.Y. 193; Quincy Mining Co. v. Kitts, 42 Mich. 35; Brownfield v. Railroad, 5 Am. Neg. Rep. 33; Kepner v. Traction Co., 183 Pa. St. 24; Railroad v. Campbell, 97 Ala. 147; Kaye v. Rob Roy Hosiery Co., 51 Hun 519; Starer v. Stern, 100 A.D. 383; Reid v. Railroad, 81 Ga. 694; Davidson v. Davidson, 46 Minn. 117; Huff v. Austin, 46 Ohio 386; Bohn v. Railroad, 106 Mo. 429.

OPINION

WOODSON, J.

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 employees. 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 twenty-three 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 nine in the morning -- he rang the bell for me to take the barrels off of 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 three hundred and forty 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 employees.

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."

I. The plaintiff's contention is that it was the duty of defendant to furnish him a secure place in which to work, and reasonably safe appliances with which to labor, which involved the furnishing of a cable of sufficient strength to handle the elevator, and a continuous duty to inspect same, and to see that it did not become defective or dangerous.

The correctness of that contention has many times been approved by this court, and fully supported by the text-writers upon the subjects of negligence and master and servant. [1 Labatt on Master & Servant, sec. 7; Wendler v. People's House Furnishing Co., 165 Mo. 527, 65 S.W. 737.]

It is not only the duty of the master to furnish suitable and reasonably safe means and instrumentalities with which the servant is to perform his labors, but he must also maintain them in such suitable and safe condition, which requires their continuous inspection, the repairment of defective parts, and the replacement of those which are worn out. [1 Labatt...