Leahy v. Davis

Decision Date24 March 1894
Citation121 Mo. 227,25 S.W. 941
PartiesLEAHY et ux. v. DAVIS et al.
CourtMissouri Supreme Court

Appeal from St. Louis circuit court; W. W. Edwards, Judge.

Action by Daniel Leahy and wife against John T. Davis and others for the death of a child. From a judgment for $175, plaintiffs appeal. Affirmed.

H. A. Loevy, for appellants. Eben Richards, for respondents.

GANTT, J.

This is an action for damages by plaintiffs for alleged negligence of defendants, resulting in the death of their son Dennis J. Leahy, who, at the time of his death, was 16 years and 10 months old. Defendants are partners conducting a wholesale dry goods business in the city of St. Louis under the firm name of Samuel C. Davis & Co. The negligence complained of consisted in the construction and maintenance of the doors to the freight elevator, by which freight was discharged. This elevator ran in a shaft from the basement to the fifth floor of the business house of defendants, and was in the rear of the building, along which ran an alley. To facilitate shipments of goods, defendants had built a platform about 25 feet long, 6 or 8 feet wide, and 3 feet above the alley. This platform was on a level with the bottom of the east elevator door, opening on the alley. This door and elevator were used for discharging goods. The door was 8 or 9 feet high by 7 feet wide, and was operated by weights, and worked in a groove, up and down. On the outside was a knob and a groove for the hand, by which the door was lowered or raised as occasion required. The hole of the shaft was about one foot in from the outside of the wall. At the east end of the platform, defendants had a small wooden structure for their shipping clerk's office extending 6 or 7 feet into the alley outside of their building. On the 12th day of April, 1890, about 5 o'clock in the afternoon, Dennis Leahy, a boy nearly 17 years old, employed as a teamster by the Udell-Crunden Wooden Ware Company, having been directed by his employers to deliver a baby buggy to defendants' store, drove into the alley in the rear of the building, and deposited the buggy on the platform. Tobin, a porter in the store, was just about to close the gate or door at the western entrance to the store, and stopped long enough to ask Dennis if he had anything for the house. He answered. "No, 1 have got something for Davis." Tobin directed him to leave the buggy on the platform, and see the shipping clerk. Tobin then left. Dennis started towards the shipping office. He next saw Dennis lying in the basement, unconscious from a fall. Mr. Hirth, who was stock clerk at the time for defendants, was sitting in the window looking down on the alley. He saw Dennis get on the platform, go to the door of the elevator, stoop down, and raise the door. It took a strong lift to raise it. He next saw him lying at the bottom of the shaft, into which he had stepped and fallen. This door of the elevator is right adjoining the shipping clerk's office. Plaintiffs recovered a judgment for $175, from which they have appealed.

The grounds assigned for a new trial were the inadequacy of the damages awarded, and the refusal of the court to instruct the jury that they might award plaintiffs punitive or exemplary damages, as follows: "If you believe and find from the evidence that defendants and their employés, during their usual business hours, did not lock or fasten the door of the elevator shaft, which plaintiffs' son opened, and did not keep it locked or fastened when the elevator was not being used, and that they or their employés did not give to persons who might have business with them, and for that purpose came upon said premises, verbal or written notice or warning that said door was the door to the elevator shaft, and not the door for entrance to their place of business, and that it was a pitfall or place of danger, and that it was dangerous for him to open said door, and that they did not properly fence or guard said shaft, so as to prevent injury to persons unaccustomed to said premises, who might open said door, and attempt to pass through said doorway, and that the door of said shaft which he opened is close to two doors in defendants' building, which are doors used as entrance thereto, then the defendants have been guilty of such wrongful negligence and default as evinced a conscious disregard of the rights of said Dennis John Leahy, and plaintiffs are entitled to recover damages from them as a punishment or example for their said neglect or default." There is no entrance to the floor of the building opening onto the platform in the alley. The entrances to the building are all on a level with the alley west of the platform, except the door to the little shipping office, which is just east of the platform. Plaintiffs maintain that there was nothing to indicate to their son that there was an open, unguarded shaft back of the door, whereas defendants insist that the fact that the door worked up and down in grooves; was shut and closed when plaintiffs' son came to it; that it was open daylight, and by ordinary care he could have seen it; and the fact that it opened upon the platform, three feet higher than the floor of the building, which Dennis (plaintiffs' son) could have seen through the door in which Tobin was standing, — all gave notice that this was not a business entrance to the store, and but for his hurried, careless, and negligent act in raising the door, and walking forward without...

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