Luckel v. Century Bldg. Co.

• Decision Date: 30 June 1903
• Citation: 177 Mo. 608,76 S.W. 1035
• Court: Missouri Supreme Court
• Parties: LUCKEL v. CENTURY BLDG. CO.<SMALL><SUP>*</SUP></SMALL>

76 S.W. 1035

177 Mo. 608

LUCKEL v. CENTURY BLDG. CO.^*

Supreme Court of Missouri, Division No. 2.

June 30, 1903.

CARRIERS OF PASSENGERS—OPERATOR OF ELEVATOR—TRUSTEE IN POSSESSION—NEGLIGENCE —JURY QUESTION—GROUND OF LIABILITY —CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS—EXCESSIVE VERDICT.

1. A grantor in a deed of trust, who constitutes the trustee his attorney in fact to take possession, management, and control of the mortgaged premises, receive the rents, pay the expenses and interest on the secured debt, etc., nevertheless remains the principal of an elevator operator hired by such trustee, and is responsible for his negligence, resulting in injury to a passenger.

2. The question of negligence on conceded facts admitting of but one inference, and in a case where reasonable men would not fairly differ thereon, may be decided by the court.

3. Where a passenger in an elevator, relying on a signal for a certain floor given by his co-passenger, attempts to follow him in alighting at that floor, using due care, and when he is in the elevator door the operator suddenly closes it, pinning the passenger therein, and then raises the elevator, and afterwards, aware of the passenger's peril, lowers it, crushing the passenger between the floor and the roof of the car, the operator is negligent, and the passenger is entitled to recover.

4. In a personal injury case, an inadvertent statement by plaintiff in his testimony that he did not complain of the act occasioning his injury, but only of prior acts, will not warrant sustaining a demurrer to the evidence, where he afterwards states that he misunderstood the question, and that he did complain of the negligent act.

5. Where a passenger in an elevator is caught in the door, and the elevator raised above the floor, and then, through the negligence of the operator, lowered in such a manner as to injure the passenger, his negligence in attempting to alight is no defense.

6. In an action by a passenger in an elevator for injuries, defendant requested an instruction that, if plaintiff attempted to pass out of the elevator after it began to move, he could not recover. The court instructed that, if plaintiff was not using ordinary care when he started to alight, he could not recover, and also instructed at length if the passenger did not indicate an intention to alight, and the elevator stopped long enough to permit him to do so, the operator was not negligent in starting the car and closing the gate, if he could not then have discovered the passenger's attempt to leave it; and also that, if the passenger did not attempt to alight until the elevator was in motion, he was guilty of negligence, and could not recover, unless his injury was occasioned by the subsequent carelessness of the operator preventing him extricating himself. Held, that the requested instruction was sufficiently covered by those given.

7. An elevator operator testified that after a passenger had been caught in the door, and the elevator raised a couple of feet, it came to a full stop, and the passenger could have got back into the car; that he let the car down, watching the passenger more than he should have done, and the elevator less, and permitted it to go too low, injuring the passenger. Held, that an instruction to find for the defendant was properly refused.

8. The owner of a passenger elevator is a carrier of passengers, and held to the highest degree of care that a prudent man would exercise to avoid injury to them.

9. Evidence in a personal injury case by a man 22 years old, resulting in his serious and perhaps permanent injury, held to warrant a verdict for $5,000.

Appeal from St. Louis Circuit Court; Jacob Klein, Judge.

Action by Edwin Luckel against the Century Building Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Seddon & Blair and Robt. A. Holland, Jr., for appellant. J. F. & R. H. Merryman, for respondent.

GANTT, J.

This is an action for damages for personal injuries, commenced in the circuit court of the city of St. Louis March 17, 1900. The petition, in substance, states: That the Century Building Company is a corporation organized under the laws of this state, and at the time of the grievances complained of was the owner of and in possession of a large office building 10 stories high, located on the northwest corner of Ninth and Olive streets, in St. Louis. That said building was thrown open to the public and all parties invited to enter who rented rooms and all who had business with said tenants. That for the use of its tenants and all persons having business with them defendant had placed in said building a number of elevators for the carriage of all persons who had a right in said building to and from any floor that their business might call them, and said elevators were owned, operated, and managed by defendant, its agents and employés. That the Bryant & Stratton Business College was a tenant of defendant, and occupied a suite of rooms on the fifth floor, and was engaged in teaching the various branches of a business education. That on the 26th day of February, 1900, the plaintiff, a young man, was a student in said college, and presented himself at the usual and customary place of entrance of one of said elevators for the purpose of being carried to the fifth floor of said building, that he might pursue his studies. That he entered said elevator, and the agent and servant in charge put said elevator in motion, and when said elevator had reached the fifth floor it was stopped at plaintiff's request, and the door guarding the entrance opened, and while plaintiff, using due care, caution, and prudence, was in the act of stepping from the elevator through said doorway onto the fifth floor while the elevator was at a standstill, defendant, by its agent and servant in charge of said elevator, and acting within the scope of his employment, carelessly and negligently did suddenly and without warning to plaintiff cause the door to close, said door catching and pinning plaintiff; and while plaintiff was in the position of one foot and half of his body on the landing on the fifth floor and the other foot and part of his body in the elevator, defendant's said servant did cause the elevator to ascend about two or three feet, when said servant did negligently cause said elevator to descend, and as the bottom of the elevator descended below the fifth floor, plaintiff unable to extricate himself was caught by the top of said elevator and crushed and mangled, fracturing his seventh and ninth ribs on his left side and tenth rib on his right side, severely injuring his spine, and giving him numerous contusions on his chest, buttocks, thighs, and foot, and severe internal injuries, and permanently injuring him for life. By reason of which he has been permanently injured, suffered great pain and anguish, both in mind and body, and has been compelled to spend large sums for medical attention, nurses, and medicine, all to the amount of $15,000, for which he prayed judgment. The answer was a general denial and contributory negligence. The cause was tried before Judge Klein and a jury, and resulted in a verdict for plaintiff for $5,000. Defendant appeals.

There is only a slight difference in the statements of the respective counsel as to the controlling facts of the case. Plaintiff's statement is somewhat fuller, and, leaving out immaterial matter, is substantially as follows: Plaintiff was a young man 22 years of age, and a student in the Bryant & Stratton Business College in the Century Building. Dr. Carpenter, the principal of the college, testified that 24 rooms on the fifth floor of this building were occupied by the Bryant & Stratton Business College. The plaintiff, on the 26th day of February, 1900, at about the noon hour—12 o'clock—took passage on defendant's elevator at the first floor bound for the fifth floor, where said college was located. There were three passengers in the elevator. The elevator stopped at the third floor, and let one of the passengers, a lady, off. There then remained in the elevator Samuel J. Hunt (the operator), Morris P. Yocum, and the plaintiff, Edwin Luckel. The elevator was 4 feet 3 inches in width and 5 feet 5 inches in length. The gate was 3 feet 1 inch wide. Morris P. Yocum, on entering the elevator, called out the fifth floor. Plaintiff did not call out the floor, but stood right behind Yocum, within two feet of the door of the elevator, with the operator on his right hand. The elevators face toward the east. Luckel, the plaintiff, stood just behind Yocum, and within two feet of the elevator door. When the elevator reached the fifth floor, Mr. Yocum stepped out. Luckel, the plaintiff, started out of the elevator just as Yocum started out. Hunt, the operator, says at this point. "I waited a second, and took it for granted that he was going on to the other floor." Mr. Yocum took four steps outside of the elevator, when he was attracted by an exclamation of the plaintiff, which was, "Didn't you know that I wanted to get off here?" There were three diagrams in evidence of the various positions of the plaintiff. They are numbered 1, 2, and 3. No. 1 shows the plaintiff in the act of getting out of the elevator, with one of his feet on the fifth floor of the defendant's building, and the other in the elevator. Mr. Yocum saw him in the position as illustrated by diagram No. 1. As the plaintiff was stepping out onto the fifth floor of the defendant's building, the operator, Hunt, closed the door of the elevator. This closing of the door or gate of the elevator pinned the plaintiff in between the gate and the side of the elevator screen. Plaintiff could not extricate himself from this position, and while in this position, and unable to extricate himself, the operator, Hunt, started the elevator. It ascended about two feet. The operator, Hunt, then stopped the elevator. The position of Luckel, the plaintiff, when the elevator had ascended about...