Lehnerts v. Otis Elevator Co.

• Decision Date: 03 December 1923
• Docket Number: No. 23493.,23493.
• Citation: 256 S.W. 819
• Parties: LEHNERTS v. OTIS ELEVATOR CO.
• Court: Missouri Supreme Court

256 S.W. 819

LEHNERTS v. OTIS ELEVATOR CO.

No. 23493.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

Action by George F. Lehnerts against the Otis Elevator Company, a corporation. Judgment for defendant, and plaintiff appeals. Affirmed.

J. L. London, of St. Louis, for appellant.

A. & J. F. Lee, J. A. Waechter, and Joseph Renard, all of St. Louis, for respondent.

DAVID E. BLAIR, P. J.

Action for damages for personal injuries. Trial by jury resulted in a verdict for defendant (respondent here), from which plaintiff has appealed. The damages claimed fix our jurisdiction.

Otis Elevator Company, Westlake Construction Company, and N. J. Parent Company were named as defendants in the amended petition, upon which the case was tried. Westlake Construction Company and N. J. Parent Company paid plaintiff substantial sums in settlement, and the case was dismissed as to them and proceeded against Otis Elevator Company as sole defendant. Plaintiff was employed by defendant in helping to install elevators in the Grand Leader building in St. Louis. There were six elevators built side by side along the west wall of the building. On August 25, 1920, plaintiff was chiseling away some concrete which interfered with the movement of the elevator weights. He was standing on the elevator platform at the fourth floor engaged in such work, when a small quantity of wet plastering fell from above and struck him. Some of the plastering entered his right eye, seriously and permanently injuring the same.

The evidence offered ay plaintiff, which is not contradicted, is that plasterers in the employé of the N. J. Parent Company were at the time engaged in plastering the walls in shaft No. 4, immediately south of shaft No. 5, where plaintiff was working. They were at work on a floor three or four stories above where plaintiff was at work and, presumably, some of the wet plaster fell from No. 4 shaft into and down No. 5 shaft and upon plaintiff. No. 5 shaft was clear, and plaintiff was the only person working therein. Plaintiff claimed he did not know the plasterers were at work above him in the adjoining shaft at the time, but admitted that he knew they were working there earlier in the day. No fixed scaffolding could have been placed in No. 5 shaft above plaintiff, because it was necessary to move the elevator up and down in its trial flight. No cover or screen of any sort was placed above him upon the elevator where he was working, nor was there any partition between the two elevator shafts to prevents articles from falling from No. 4 shaft into shaft No. 5.

Defendant's evidence was to the effect that its foreman did not know that the employés of the Parent Company were at work at No. " shaft, that plaintiff was in a position to know it if they were so working and did know it, and that it was not practicable or customary to cover the elevator when it was being run on trial flight.

The negligent acts charged in the petition were that defendant failed to exercise ordinary care to provide a covering over the place where plaintiff was working when defendant knew, or by the exercise of ordinary care would have known, the Parent Company was working above the plaintiff, and that material, particularly plaster, was liable to fall and strike the plaintiff; failure to warn plaintiff of the danger from falling material, and failing to warn plaintiff that the Parent Company was working above the plaintiff and close to the shaft; that defendant was accustomed to furnish coverings under such circumstances and to warn men that work was being done above them and negligently failed to do so; that defendant negligently failed to inspect the manner of work being done so as to guard against falling material. Plaintiff also pleaded violation of section 6802, R. S. 1919. The answer of defendant was a general denial.

Plaintiff asked no instructions, except upon the measure of damages. Defendant asked, and the trial court gave, fifteen instructions. Instruction No. 15 withdrew from the consideration of the jury the alleged violation of section 6802.

Five assignments of error are made here. Assignments I and IV involve the same proposition, to wit, that defendant was negligent as a matter of law, and that the court should have directed a verdict for plaintiff and instructed the jury to determine the damages. Assignments II and V go to the alleged error of the trial court in giving each and every one of the fifteen instructions asked by the defendant. Assignment No. III is that Competent, material, and relevant testimony offered by plaintiff was erroneously excluded by the trial court.

I. First, of the contention that plaintiff was entitled to a judgment as a matter of law under the undisputed facts. Plaintiff did not ask the court to instruct the jury that, under all the evidence, the defendant was negligent as a matter of law, and is in no position to contend that the court erred in failing to give such instruction of its own motion. Plaintiff cites and relies on the following cases: Haake v. Milling Co., 168 Mo. App. loc. cit. 179, 153 S. W. 74; Roberts v. K. Rys. Co., 204 Mo. App. loc. cit. 590, 228 S. W. 902; Zimmerman V. R. R. Co., 71 Mo. loc. cit. 491; Kelley v. Parker-Washington Co., 107 Mo. App. 495, 81 S. W. 631; Warren v. Curtis & Co. Mfg. Co. (Mo. App.) 234 S. W. 1029.

Those cases do not support plaintiff's contention under the facts in this case. They are to the effect that, where there is no dispute about a given act, for which a defendant is admittedly responsible, and there can be no difference of opinion in the minds of reasonable men that such act constitutes negligence, it is not necessary for the court to submit to the jury the question of negligence, and in that event the court should instruct the jury that such act constitutes negligence. Here there is a serious issue whether defendant's foreman had any knowledge whatever that the employés of the Parent Company were at work in No. 4 shaft, and the trial court could not say as a matter of law that defendant was negligent in putting plaintiff to work in No. 5 shaft without first ascertaining the situation in that regard. Where the act is such that reasonable minds may differ as to whether it was negligent, it is for the jury and not the court to determine the question of negligence. Owen v. Delano (Mo App.) 194 S. W. 756, loc. cit. 760; Dais v. Smith (Mo. App.) 185 S. W. 1183.

II. The only exclusion of testimony offered by plaintiff was as follows: Plaintiff asked witness Staehle, construction superintendent for defendant, if he permitted his men to assume all hazards of falling material. The objection made to the question was that it was argumentative and an improper question. No offer of proof is shown to have been made. Plaintiff cites Eidson v. Metropolitan Street Railway Co. (Mo. App.) 209 S. W. 575. The only holding in that case which could be applicable is that great liberality is permissible in cross-examination. The general rule is that the scope and extent of cross-examination of a witness is a matter largely within the discretion of the trial court, and its rulings thereon will not be disturbed unless an abuse of discretion is shown. 40 Cyc. 2511; State v. McLaughlin, 149 Mo. 19, 50 S. W. 315. Apparently the only purpose in asking the question was to discredit the witness: There was nothing whatever in his previous testimony to indicate any want of humanity on the part of the foreman toward the men working under him, or any callous indifference to their safety. He had testified that he did not know that the plasterers were at work in the adjoining elevator shaft. The trial court did not abuse its discretion in excluding the testimony.

III. Although counsel for plaintiff asked no instructions indicating his theory of the case, and only ventured far enough to present an instruction on the measure of damages, he assigns error as to each and every one of the instructions requested by the defendant and given by the court. When counsel reached his points and authorities and his argument he passed over the first four instructions and instruction 15, and we deem it unnecessary to notice them further.

(a) Instruction No. 5 related to assumption by the servant of the ordinary risks and hazards of the business in which he is engaged for the master. Apparently the criticism made of it is that negligence of the master is not excluded from the risks assumed. But this construction is not correct. The instruction excludes the master's negligence in the following clause:

" * * * And should the jury find from the evidence that plaintiff's injuries were the result of accident unmixed with any negligence of defendant, as explained in other instructions," etc.

The...