Lee v. Publishers Knapp & Co.
| Decision Date | 30 March 1900 |
| Parties | LEE v. PUBLISHERS KNAPP & CO., Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.
Affirmed.
A. & J F. Lee for appellant.
(1) The court below erred in giving plaintiff's instruction numbered 3, of its own motion. The effect of this instruction was to allow plaintiff to recover, even though the accident happened in a way different from that set out in plaintiff's petition. Plaintiff alleged that deceased was caused to be thrown or fall from the elevator, and this instruction allows plaintiff to recover if deceased stepped or jumped from the elevator. Where a petition charges a specific act of negligence, an instruction is improper which authorizes a recovery if the defendant is guilty of some other act of negligence. Chitty v. Railroad, 49 S.W. 868 (Mo); Yarnell v. Railroad, 113 Mo. 570; Waldheir v. Railroad Co., 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Stanard Milling Co. v. White Line C. T. Co., 122 Mo. 258. (2) The court erred in giving instruction numbered 1, at the request of plaintiff. This instruction in substance tells the jury that the operator of an elevator is a common carrier, and that he owes the highest degree of care to persons using same, and is liable for slight negligence in the operation thereof. This is not the law. The duty of the operator of an elevator is to use ordinary care in its operation, and he is liable to one injured in an elevator only for failure to use ordinary care. O'Donnell v. Patton, 117 Mo. 13; Lee v. Knapp, 55 Mo.App. 390. (3) The court erred in refusing to give, at the request of defendant, at the close of the entire evidence an instruction in the nature of a demurrer to the evidence. Stoneman v. Railroad, 58 Mo. 503; Holman v. Railroad, 62 Mo. 562; Stepp. v. Railroad, 85 Mo. 229; Brown v. Hershey Land & Lumber Co., 65 Mo.App. 162; Breen v. St. Louis Cooperage Co., 50 Mo.App. 202; Smillie v. St. Bernard Dollar Store, 47 Mo.App. 402; Epperson v. Postal Telegraph Cable Co., 50 S.W. 807; State v. Brooks, 99 Mo. 137; Spillane v. Railroad, 135 Mo. 414; Payne v. Railroad, 129 Mo. 405; Graney v. Railroad, 140 Mo. 89; Payne v. Railroad, 136 Mo. 562; Butz v. Cavanaugh, 137 Mo. 503. (4) The court committed error in sustaining plaintiff's objections to the question asked of witness Brislin as to the safety of the construction of the doorways of the elevator, said Brislin having qualified as an expert. It is competent for one qualified as an expert in regard to machinery of any kind to testify as to the safety of a given machine. Cobb v. Railroad, 50 S.W. Rep., p. 894; Railroad v. Brooking, 51 S.W. 537; Goins v. Railroad, 47 Mo.App. 174; Illinois Central v. Davidson, 22 C. C. A. 306; Benjamin v. Railroad, 50 Mo.App. 602; Railroad v. Pitts, 42 S.W. 255; Lau v. Fletcher, 62 N.W. 357. (5) The court below erred in sustaining plaintiff's objection to certain questions asked by defendant in the direct examination of witness Brislin in regard to whether the construction of the elevator in question was proper. It is competent for one qualified as an expert in regard to elevators to state whether or not the given elevator is constructed in a proper manner. Railroad v. O'Brien, 16 Colo. 219; Hayes v. Railroad, 17 Utah 99; Railroad v. Hackett, 39 A. 510; Grant v. Barney, 21 Colo. 329; Lang v. Terry, 163 Mass. 138; Neubauer v. Railroad, 60 Minn. 130; McGonigle v. Kane, 20 Colo. 292; Fitts v. Railroad, 49 Wis. 323. (6) The court below committed error in sustaining plaintiff's objection to a question asked by defendant in the direct examination of witness Brislin in regard to what was the ordinary construction of elevator approaches. It is certainly competent for an expert on elevators to state what is the ordinary construction of elevators and approaches thereto. Lee v. Publishers George Knapp & Co., 55 Mo.App. 406; Lang v. Terry, 163 Mass. 138; Fitts v. Railroad, 49 Wis. 323. (7) The court below erred in sustaining plaintiff's objection to question asked by defendant in direct examination of witness Brislin in regard to the extent of the vibratory motion of the elevator. When the subject of inquiry is so indefinite in its nature as not to be susceptible of direct proof, the opinions of witnesses are admissible. In this case it is competent to ask the witness whether the vibratory motion was sufficient to cause a person to lose his balance. Eyerman v. John Sheehan, 52 Mo. 221; State v. Buhler, 103 Mo. 203; McPherson v. Railroad, 97 Mo. 253; Boot & Shoe Co. v. Brown, 46 Mo.App. 581. (8) If plaintiff's action is brought under R. S. 1889, sec. 4226, the court below erred in refusing to set aside the verdict on the ground that it was excessive. Under this section plaintiff's recovery was limited to the loss sustained by her, and the evidence fails to show that her loss amounted to anything like $ 3,500. If, however, the plaintiff's action is brought under R. S. 1889, sec. 4425, then the verdict should have been either for $ 5,000 or nothing, and, therefore, a verdict for $ 3,500 is clearly erroneous.
A. R. Taylor and Virgil Rule for respondent.
(1) (a) There was no evidence that deceased jumped into the vestibule and upon the platform, and having landed there in safety, fell into the shaft after the car had passed; and therefore no basis for the giving of the instructions complained of in points 1, 2 and 3 by appellant. Curran v. Downs, 7 Mo.App. 329; Benjamin v. Railroad, 50 Mo.App. 602; State v. Wilforth, 74 Mo. 528; Chouteau v. Searcy, 8 Mo. 733; Stokes v. Ravenswood, 64 Mo.App. 420; Lester v. Railroad, 60 Mo. 265; Turner v. Railroad, 51 Mo. 501; Gosham v. Railroad, 113 Mo. 408. (b) The instruction as asked and modified, submitted to the jury an issue of fact raised by the affirmative defense pleaded in the answer, therefore defendant is not in a position to complain, and being based on the answer can not be considered as a departure from the petition. (c) If there had been evidence that the boy stepped from the elevator and fell through the defective shaft, such evidence, even if offered by plaintiff, would have only constituted a variance, and not a failure of proof as to the substantial negligence alleged, and such objection is waived. R. S. 1889, secs. 2096, 2097; Waldheir v. Railroad, 71 Mo. 514-518; Leslie v. Railroad, 88 Mo. 54; Alcorn v. Railroad, 108 Mo. 92. (2) Carriers of passengers by elevators are bound to exercise the highest degree of human care for the personal safety of the passengers, in every respect, whether in the construction of the elevator and machinery, or its operation by the attendant. Mitchell v. Marker, 62 F. 140; Hartford Deposit Co. v. Sallitt, 172 Ill. 222; Oberndorfer v. Pabst, 100 Wis. 513; Treadwell v. Whittier, 80 Cal. 574; McGrell v. Buffalo Building Co., 70 N.Y. 372; Morrison v. Metropolitan Tel. Co., 52 N.Y. 601; Tousey v. Roberts, 114 N.Y. 312; Gierchard v New, 65 N.Y. 20; Kentucky Hotel Co. v. Camp, 97 Ky. 474; Godsell v. Taylor, 41 Minn. 207; McGonigle v. Kane, 20 Colo. 292; Peoples' Bank v. Morgolofski, 75 Md. 432; Dawson v. Sloan, 100 N.Y. 620; Laws Mass. 1890, ch. 90; Gen. Laws Minn. 1895, ch. 171; 1893, ch. 7, sec. 3; Laws N. Y. 1892, ch. 673, sec. 3; 1890, ch. 398, sec. 8; Laws Penn. 1895, p. 129; Laws Mich. 1893, 126, sec. 8; Laws Conn. 1893, ch. 118. (3) (a) If reasonable men might fairly differ on the question of defendant's negligence, it is for the jury to determine, and the court did not err in submitting the question to the jury. Lee v. Knapp & Co., 55 Mo.App. 390; Lee v. Knapp & Co., 137 Mo. 385. (b) Contributory negligence, as a matter of law, can not be imputed to a child twelve years old. Murphy v. Railroad, 43 Mo.App. 342; Gass v. Railroad, 57 Mo.App. 574. (4) The evidence of expert witnesses is not admissible unless it is clear that the jurors themselves, from want of experience or knowledge of the subject, are not capable of drawing correct conclusions from the facts proved. In this case the jurors were just as capable of drawing correct conclusions from the facts proved, as the witness himself. Benjamin v. Railroad, 133 Mo. 274; Griffin v. Willow, 43 Wis. 509; Koons v. Railroad, 65 Mo. 597; Eubank v. Edina, 88 Mo. 655; Gutridge v. Railroad, 94 Mo. 472; King v. Railroad, 98 Mo. 240; Naughton v. Stagg, 4 Mo.App. 271; Reid v. Ins. Co., 58 Mo. 521; Bills v. Ottumwa, 35 Iowa 109; Hambleton v. Railroad, 36 Iowa 31; Hughes v. Muscatine Co., 44 Iowa 672; McDonald v. State, 27 N.E. 358; Ivory v. Deerpark, 22 N.E. 1080; Bailey v. Railroad, 8 N.Y.S. 780; Bohr v. Neunschorander, 22 N.E. 416; DeBerry v. Railroad, 6 S.E. 723; Yeaw v. Williams, 15 R. I. 20; Kold v. Sandwich Enterprise Co., 36 Ill.App. 419; Lincoln v. Barry, 5 Cush. 590; Ryerson v. Abdington, 102 Mass. 526; Kelly v. Fond du Lac, 31 Wis. 179; Montgomery v. Scott, 34 Wis. 338. (5) (a) The questions which these witnesses were not permitted to answer were objectionable because they submitted a matter in issue to the judgment of the witness. Madden v. Railroad, 50 Mo.App. 666. (b) And because the subject was not beyond the knowledge or experience of ordinary men, and the jury were capable of drawing correct conclusions from the facts testified to by the witnesses. Gavisk v. Railroad, 49 Mo. 274; Walton v. Railroad, 40 Mo.App. 544; Railroad v. St. L. Stock Yards, 120 Mo. 541; Hurt v. Railroad, 94 Mo. 255; Gregory v. Chambers, 78 Mo. 294.
On the 12th of September, 1892, General Robert E. Lee, a boy about 12 years of age, generally known by the name of Willie, was killed by a fall from the cage or car of an elevator belonging to and being operated by defendant in its five story building on the corner of Third and Chestnut streets in the city of St. Louis.
This action was...
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