Marshall v. United Rys. Co. of St. Louis

• Decision Date: 07 December 1915
• Docket Number: No. 14164.,14164.
• Parties: MARSHALL v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

184 S.W. 159

MARSHALL v. UNITED RYS. CO. OF ST. LOUIS.

No. 14164.

St. Louis Court of Appeals. Missouri.

December 7, 1915.

Rehearing Denied March 28, 1916.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

"Not to be officially published."

Action by Lisle Francis Marshall, by Frank B. Marshall, his next friend, against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest and G. T. Priest, all of St. Louis, for appellant. Jones, Hocker, Hawes & Angert, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff, a minor, by reason of falling into an elevator shaft maintained by defendant in an office building occupied by it in the city of St. Louis. There was a verdict and judgment for plaintiff in the sum of $2,000, and the case is here on defendant's appeal.

Plaintiff, a young man about 15 years of age at the time of his injury, and who was attending school, was employed by defendant for certain hours during the day, and on Saturdays and during vacation periods. His duties in the main were to collect and assort certain transfer slips, or "transfers," though the evidence is that plaintiff from time to time rendered other services about the building.

It appears that the building, situated at Park and Vandeventer avenues, in the city of St. Louis, is several stories in height; and that in the rear portion thereof defendant maintained a freight elevator. Upon the first floor, or "office floor," the elevator shaft was guarded by two iron doors. That is to say, the opening leading to the elevator from this floor, about 4½ feet in width, was provided with two narrow iron doors which swung outward upon hinges. It appears that inside of these doors there was a small wooden gate at the left as one approached the elevator entrance, which, when closed, extended half-way across the opening, leaving one-half thereof unguarded when the iron doors were open. The elevator shaft connected directly with a driveway in the rear of the building leading to an alley. The level of this driveway was about 14 inches below the level of the office floor, and at the entrance to the elevator shaft from the driveway was a large sliding door, which was operated by sliding it upward or downward by means of two large handles attached thereto.

On the morning of April 6, 1911, shortly before 8 o'clock, plaintiff, who had completed his regular work of collecting and assorting transfers, was upon the first floor of the building a short distance from the elevator, being about to leave the building to go to school. The evidence is that it was then rather dark in this portion of the building, and particularly in the elevator shaft. The elevator was not in fact at or about this landing, but was somewhere in the upper part of the building. One Williams, who at the time was plaintiff's immediate superior, had opened the iron doors leading from the office floor to the elevator shaft and was within the shaft, supporting himself, in part at least, upon a ledge at one side of the shaft, and was endeavoring to raise the sliding door opening upon the driveway. It appears that when plaintiff came within about 10 feet of the elevator shaft he saw that the iron doors, i. e., the swinging doors at the elevator entrance from the office floor, were open and that Williams was within attempting to raise the outer sliding door. Assuming, because of the open doors and the presence of Williams in the shaft, that the elevator was at the level of the driveway entrance at the rear, i. e., about 14 inches below the level of the floor upon which plaintiff then was, plaintiff entered the elevator shaft to assist Williams in raising the outer door, and fell to the bottom of the shaft in the basement below and was injured.

Plaintiff testified that, when the doors to the elevator shaft were open, the elevator was always at the level of the driveway. That the doors were not, in the usual course of things, opened unless the elevator was at this landing, appears from repeated statements of plaintiff on the witness stand. It seems that for ventilation, if not for other purposes, the swinging iron doors within and the outer sliding door as well would frequently be left open, but only when the elevator was standing at the level of the driveway. Plaintiff testified that, upon the occasion here in question, he saw the elevator doors at the office floor open, looked into the elevator shaft, and saw Williams therein, the latter being visible because of a white shirt which he wore; and, after hesitating a moment, entered the shaft to assist in raising the outer door. He says that by looking he could not ascertain whether or not the floor of the elevator was in fact at the level of the driveway. He "jumped" into the shaft, i. e., he sprang from the edge of the office floor expecting to alight upon the elevator floor at the level of the driveway, about 14 inches below.

It is conceded that Williams had not called for assistance, and that he did not know that plaintiff was attempting to come to his assistance until he saw plaintiff fall.

Some special phases of the testimony will receive attention in the course of the opinion.

The petition is in two counts. The first count avers that, "under the statute in such cases made and provided," it was the duty of defendant to have the opening to the elevator shaft protected "by good and sufficient trapdoors, self-closing hatches, safety catches, or strong guard rails at least three feet high, and to use diligence to keep the same closed at all times except when in actual use"; and it is alleged that plaintiff was lawfully upon defendant's said premises, as an employé of the defendant, and that, by reason of defendant's violation of the said "duty imposed upon it by statute," plaintiff was caused to fall into the elevator shaft and was injured.

The second count alleges that defendant occupied the office building in question and maintained and operated the elevator therein, and that on April 6, 1911, plaintiff "was in said building pursuant to the invitation and direction of the defendant, and, while so in said building as aforesaid, the defendant negligently and carelessly permitted the wellhole in which said elevator was operated on the first floor of said building to be open, exposed, and unguarded, so as to endanger plaintiff and other persons lawfully in said building, and that, as a result of said negligence of the defendant, the plaintiff fell into the elevator shaft or wellhole," whereby he was injured.

The answer to each count is a general denial coupled with an averment that plaintiff's injuries, if any, "were caused by his own carelessness and negligence."

Certain ordinances of the city of St. Louis were offered in evidence by plaintiff. Upon objections being interposed thereto by defendant, all of the ordinances offered were excluded except section 447 of article 4 of chapter 6 of the Revised Code of St. Louis (1912). The latter, which was read in evidence, is as follows:

"Every hoistway, hatchway, stairway, or wellhole in every building, shall hereafter be securely guarded by means of proper gates, railings or guards, or other inclosures, which may be approved by the commissioner of public buildings. Such guards or railings shall not be less than three feet in height nor more than one foot above the floor, and shall be so constructed as to effectually prevent persons from falling into such hoistways, hatchways, stairways, or wellholes. The owners, lessees, or occupants of any building in the city of St. Louis, in which hatchways or wellholes exist, or shall hereafter be constructed, shall cause the same to be effectually barred or inclosed, as provided in sections 450, 451, 452, 453 of this article, for the prevention of accidents therefrom."

At the close of plaintiff's case, the court, at the instance of defendant, gave a peremptory instruction to the effect that under the law and the evidence plaintiff was not entitled to recover on the first count of his petition. A like instruction offered by defendant as to the second count was refused. The cause was submitted to the jury, under the second count of the petition, upon instructions which need not be here set out. But one instruction is challenged, and that will be noticed later.

I. No point is made here as to the admissibility of the ordinance read in evidence. It was objected to below on the ground that it had not been specially pleaded, but the court held that it was admissible under the general allegation of negligence. As to the effect of the ordinance, it may be said that, ordinance or no ordinance, the leaving of the entrance to the elevator shaft exposed and unguarded was a negligent act sufficient to cast liability upon defendant for injuries thereby proximately caused to any one to whom defendant owed any duty in the premises. The question is: What, if any, duty did defendant owe to this plaintiff with respect to guarding the shaft at the time and under the existing circumstances? And there is the question of plaintiff's own negligence to be reckoned with.

It is earnestly contended by learned counsel for appellant that the latter's demurrer to the evidence should have been sustained, as to the cause of action counted upon in the second count of the petition, upon which the case went to the jury, for the following reasons, to wit:

"(a) Because plaintiff's employment was from day to day, and, the moment his duties for the day ceased, the relation of master and servant ceased, and whatever he did after that service ceased was not as a servant for the master, and the master was not under any duty to protect him as a servant and to furnish him a safe place within which to work. (b) Because at the time plaintiff was injured he was not acting within the line of his duty or the scope of his employment and was a mere volunteer and occupying no...