Martin v. Kline Apparel Co.

• Decision Date: 05 March 1923
• Docket Number: No. 23117.,23117.
• Citation: 249 S.W. 965
• Parties: MARTIN v. KLINE APPAREL CO.
• Court: Missouri Supreme Court

249 S.W. 965

MARTIN v. KLINE APPAREL CO.

No. 23117.

Supreme Court of Missouri. Division No. 2.

March 5, 1923.

Motion for Rehearing Denied April 6, 1923.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

Action by Edward G. Martin, by his next friend, Catherine G. Martin, against the Kline Apparel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

M. J. Hayden, of St. Louis, for appellant.

Thomas L. Anderson, of St. Louis (Nortoni, Moore, Breaker & Green, of St. Louis, of counsel), for respondent.

RAGLAND, J.

This is an action to recover damages for personal injuries alleged to nave been negligently caused.

The defendant was engaged in the clothing business and occupied a five or six story building with basement on Washington avenue, in the city of St. Louis. Its office was on the second floor. For the use of its employés it maintained an electric elevator. This elevator was run by a regular operator during the day, but after 5 o'clock in the afternoon employés who had occasion to use it were required to operate it for themselves. Entrance into the elevator from the basement was effected through an opening in the shaft across which there was a sliding door. The opening was approximately 2½ feet wide and 6 feet high. Across the top there was a sill which did not project into the shaft, but which was flush with the wall above it. The under surface of the sill, which had a width of about 5½ inches, extended outward from the inside surface at right angles. The sliding door apparently was attached to the outside wall of the shaft. The elevator platform was inclosed by a cage which had an opening corresponding with the one in the shaft just described, but there was no door by which such opening could be closed. The lever used in operating the elevator was located immediately at the left of the opening in the cage, about 3½ feet above the platform. On account of such location it was necessary for the operator, when running the elevator, to stand in front of the opening; he manipulated the lever with his left hand. As the elevator moved upward from the basement floor there was a space of 6 or 7½ inches between the edge of the platform and the sliding door while it was passing the opening, but whet it reached the upper sill of the opening the space between that and the platform was but one or two inches.

Plaintiff, who was in his sixteenth year, was employed by defendant as office boy. Among other duties he was required, at the close of business hours each day, from 5 to 6 o'clock p. m., to get out the mail and return the stamps to the vault in the basement. At the time of his injury he had been in defendant's employ a little more than two weeks. His predecessor had remained and worked with him for two or three days in order to acquaint him with his new duties, and during that time had shown him how to operate the elevator. On the afternoon of August 1, 1918, he made a trip to the basement with stamps. On his return he entered the elevator and encountered difficulty in closing the sliding door, which was hard to work; after considerable effort he succeeded in bringing the door into place and then took, as he thought, the usual position of the operator and started the elevator up. When the platform reached the upper sill of the basement opening, the toe of his right foot caught under it and the elevator continuing to move upward his right leg was dragged along between the platform and the side of the shaft and crushed. If the under surface of the sill at the top of the basement opening had been equipped with a bevel board, sometimes called a "toeboard," or had been otherwise so constructed that it would have departed from the perpendicular of the inside surface of the wall above it only to the extent of 45 degrees instead of CO, it would have conformed to the usual construction with respect to such openings in elevator shafts. It was testified by a witness familiar with the operation of elevators that an object projecting beyond the edge of the elevator platform would be "shoved in" when it encountered such an oblique surface in an upward movement.

The injuries sustained by plaintiff can best be described in the language of the two physicians who testified at the trial.

Dr. Kinder:

"I saw this boy two or three days after he was hurt, at the City Hospital. At that time the muscles had all been separated from the bone, from the knee to the ankle had been stripped away from the bone, pulled and separated from it, and at that time the leg was greatly swollen, but you could see the primary condition. * * * At this time there is very little muscle on his leg from his knee to his ankle. There is no skin on it, there is nothing but scar there. Instead of muscles being separated into groups and parts they are all adherent together in one mass. * * * The circulation is of a very low order. He has but little circulation in the lower limb. However, there is enough to keep it alive. It breaks out in lesions from time to time. * * * Now they are practically all healed but the one on the back, which I think has never closed yet. * * * No question about the permanence of the injuries to the limb; it is a permanent condition."

Dr. Weiterer:

"In my opinion that condition is permanent. That opening in the back of the leg will be a source of infection at all times, because the opening will never heal."

The foregoing is a fair summary of the facts which plaintiff's evidence tended to establish. No evidence was offered on the part of defendant.

The specification of negligence on which the case was sent to the jury was as follows:

"Defendant negligently * * * failed * * * to furnish plaintiff with a reasonably safe place to work, but on the contrary negligently provided * * * [an] elevator * * * which was unsafe for the use which plaintiff had to use it, in that said elevator * * * was * * * caused to run in a shaft wherein a sliding door was used at the opening into the elevator in the basement, said shaft at the top of the door being negligently left with a flat surface. * * * unfilled by any wooden or metal strip, so that the same was left open and formed an open space the length of the door wherein the feet of the * * * operator could be caught and injured."

The answer was a general denial and a plea of contributory negligence.

The material portion of plaintiff's principal instruction, No. 4, was as follows:

"* * * And if the jury find from the evidence that there was no wooden or metal strip or `toeboard' filling the open space at the top of the doorway, if they find from the evidence there was an open space there and then; and if the jury further believe and find from the evidence that the unfilled open space at the top of the doorway aforesaid made the elevator unsafe or dangerous, and that such dangerous condition was known to defendant at said time, or could, by the exercise of ordinary care, have been known to it, and if the jury believe from the evidence that the defendant did not exercise ordinary care in maintaining said elevator in such condition, and if the jury believe from the evidence that plaintiff was injured in consequence of such dangerous condition of said elevator, if you believe it was dangerous, and that, at the time of the injury, plaintiff was exercising such degree of care as an ordinarily prudent boy of the same age and experience would have exercised under the same or similar circumstances, then the jury will find for plaintiff."

By another of plaintiffs instructions (No. 4A) the court told the jury that, if plaintiff—

"Was a minor about the age of 16 years, then he could not and did not assume any risk that might arise in his employment, if any there was, caused by the failure of the defendant, if any, to exercise ordinary care to provide a reasonably safe elevator shaft and appliances with which the plaintiff was to work in the discharge of the duties of his employment."

The issue of contributory negligence was fully covered by an elaborate, but carefully drawn, instruction on the part of defendant. There was a verdict and judgment for plaintiff for $10,000. After an unavailing motion for a new trial, defendant brings the ease here on appeal.

Appellant predicates error on the court's refusal to comply with its request for a directed verdict. This for the reason, as it asserts, that the evidence was insufficient to make a case for the jury on the issue of defendant's negligence, but that it did establish that plaintiff was guilty of contributory negligence as a matter of law. Appellant also complains that it was prejudiced by instructions 4 and 4A, and further that the verdict was excessive.

I. (1) Appellant criticizes plaintiff's pleading as unintelligbile. As a piece of composition it cannot be commended as a model, either from the standpoint of perspicuity or that of diction. Yet, it cannot be denied that it conveys the distinct idea that the top of the opening in the elevator shaft was negligently constructed, in that it was left with a "flat surface," unfilled with any wooden or metal strip, which formed an" open space in which the feet of the operator of the elevator were likely to be caught and injured. In the absence of a request to make definite and certain, it should be...