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

• Citation: 209 S.W. 931
• Decision Date: 01 March 1919
• Docket Number: No. 19083.,19083.
• Parties: MARSHALL v. UNITED RYS. CO. OF ST. LOUIS.
• Court: United States State Supreme Court of Missouri

209 S.W. 931

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

No. 19083.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

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

Action by Lisle Francis Marshall, by Frank B. Marshall, next friend, against the United Railways Company of St. Louis. A judgment for plaintiff was affirmed by the Appellate Court (184 S. W. 159), and the case certified to the Supreme Court. Reversed.

Boyle & Priest and George T. Priest, all of St. Louis, for appellant.

Jones, Hocker, Hawes & Angert, of St. Louis, for respondent.

BOND, J.

I. Plaintiff, a minor about 15 years of age, seeks to recover damages for personal injuries sustained by a fall into an elevator shaft in an office building occupied by the defendant, a street railway company of St. Louis.

From a verdict and judgment for $2,000 in favor of the minor, defendant appealed to the St. Louis Court of Appeals, by which court the judgment was affirmed, all of the judges concurring except Reynolds, P. J., who dissented, and because he deemed the majority opinion in conflict with the decision of this court in Kelly v. Benas, 217 Mo. 1, 116 S. W. 557, 20 L. R. A. (N. S.) 903, and Glaser v. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 100, 17 Ann. Cas. 576, the cause was certified to this court for final decision.

At the time of the accident plaintiff, a schoolboy, was employed by defendant during certain hours of the day and on Saturdays, not interfering with his school attendance. His duty was to collect and assort used transfers and to do other things when directed by his employer.

The elevator in question is used for the carriage of freight, and for convenience there are doors at the first floor opening into the office of the company and at the rear of the elevator a sliding door opening onto an alley. The opening into the alley is several feet above the level of the driveway to facilitate the handling of packages, and when the platform of the elevator is on a level with the first floor of the building, it is about 18 inches higher than the level of the opening into the alley. The entrance from the alley is closed by a single sliding door, which can be raised or lowered, while the opening on the first floor into the office is closed by two iron doors. In warm weather it was the custom of defendant to leave both doors open for ventilation.

On the morning of the accident plaintiff had finished assorting transfers, and started down stairs on his way to school. When he reached the first floor he saw Mr. Williams, a transfer clerk, attempting to open the rear door of the elevator into the alley. When this door is closed the elevator shaft is dark, and he could only distinguish Mr. Williams because he had on a white shirt. He could not see where Mr. Williams was standing, but, taking it for granted that the elevator was on a level with the driveway entrance, and thinking he could assist him, he "jumped," as he thought, onto the elevator. The elevator, however, had been taken to one of the upper floors, and plaintiff fell into the shaft, breaking his right leg.

As to the facts and circumstances of the accident, plaintiff testified as follows:

"Q. Where were you standing when you first saw Mr. Williams in the elevator? A. Well, I was about 10 feet away from the elevator.

"Q. Ten feet away from the elevator? A. Yes, sir.

"Q. Mr. Williams' back was turned toward you? A. Well, I can't tell; I can't tell whether his face was turned, but from what I saw, his back was turned.

"Q. His back was turned? A. Yes, sir.

"Q. And you couldn't see what Mr. Williams was standing on? A. No, sir.

"Q. At the time. Did you call to him? A. No, sir.

"Q. Didn't say a word to him? A. No, sir.

"Q. Mr.' Williams didn't know you were there? A. He will have to answer that himself.

"Q. Sir? A. He will have to answer that himself. I don't know.

"Q. So far as you know, Mr. Williams had no reason to believe that you were there? A. No, sir.

"Q. He had no reason to believe that you were going to the elevator to help him? A. No, sir.

"Q. He hadn't called you? A. No, sir.

"Q. He didn't ask your help? A. No, sir.

"Q. And you just ran to the elevator and jumped where you thought the elevator would be? A. I hesitated before I jumped. * * *

"Q. Without knowing whether the elevator was there, then, you undertook to jump? A. Yes, sir.

"Q. If you had asked Mr. Williams he would have told you whether the elevator was there, wouldn't he? A. I don't know.

"Q. How? A. I don't know whether he would or not. I guess he would have.

"Q. But you didn't ask him whether the elevator was there or not? A. No, sir.

"Q. You just ran toward the elevator, hesitated a minute and jumped? A. Yes, sir."

He also testified as follows:

"I understood you to say yesterday that as you jumped into the elevator shaft you saw that Mr. Williams was standing on the ledge or edge; is that correct? A. What ledge?

"Q. Well, will you tell the jury what ledge you refer to? A. The ledge to the driveway.

"Q. What? You saw him standing on the ledge in the driveway; that is, the ledge that opens into the driveway? A. Yes, sir.

"Q. You saw that. And as you jumped you saw that the elevator was not there? A. No, sir. I didn't know it until I fell down to the bottom. * * *

"Q. But you saw Mr. Williams was not standing on the elevator floor? A. As I jumped?

"Q. Yes? A. I can't say whether he was there or not.

"Q. Just a minute ago you said he was standing on the ledge leading into the driveway. A. If he did get there he had to cross the elevator.

"Q. I am not asking you that. You said just a minute ago that you did. I am asking you again: You said you saw Mr. Williams standing on the ledge which leads into the driveway; is that correct? A. Yes, sir.

"Q. That is correct? A. Yes, sir.

"Q. So you did see, then, that he wasn't standing on the floor of the elevator? A. Yes, sir.

"Q. And if you had stopped a minute before jumping to look, you could have seen Mr. Williams in that position? A. Yes, sir."

Again:

"The Court: Mr. Priest is not referring to jumping into this particular place, but he means any place.

"Mr. Priest: Any place. You knew that was a dangerous thing to do, to jump into a place where you couldn't see? A. Yes, sir.

"Q. You appreciated that fact? You understood that fact? A. Yes, sir.

"Mr. Priest: That it would be a dangerous thing. I think that is all.

"Mr. Jones: Appreciating the fact, as Mr. Priest has had you testify, that it would be a dangerous thing to jump into a place where you couldn't see, why did you jump into this place? A. Because I thought I could help Mr. Williams; and, second, because I thought that the...