McNairy v. Pulitzer Pub. Co.

• Citation: 274 S.W. 849
• Decision Date: 07 July 1925
• Docket Number: No. 18981.,18981.
• Parties: McNAIRY v. PULITZER PUB. CO.
• Court: Missouri Court of Appeals

274 S.W. 849

McNAIRY v. PULITZER PUB. CO.

No. 18981.

St. Louis Court of Appeals. Missouri.

July 7, 1925.

Rehearing Denied July 21, 1925.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Suit by William McNairy against the Pulitzer Publishing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent..

DAUES, P. J.

This is an action for damages for personal injuries, alleged to have been received by plaintiff while in the employ of defendant. Suit was filed against appellant and two other defendants. There was a verdict against appellant for $2,500, and the other defendants were released on a directed verdict. From the judgment rendered upon the verdict against Pulitzer Publishing Company, this defendant has appealed.

The petition alleges that plaintiff was employed as a laborer to work in the basement of defendant's printing plant in the city of St. Louis. It is alleged that plaintiff was required to work about the bottom of the pit of the elevator shaft in the building, and that, at the time he was injured, and for some time prior thereto, it was not reasonably safe for him to be at the bottom of the shaft, because said shaft was used in carrying heavy objects and being open and unguarded, and there being nothing to prevent the object which fell upon plaintiff on this occasion from falling and injuring him. The negligence specifically alleged is, first, that defendant should have known of the danger of injury to plaintiff in time, by the exercise of ordinary care, to have remedied such unsafe condition, but failed to do so; secondly, negligently maintaining the elevator and surroundings in the mentioned condition without protection of any kind to plaintiff, and negligently permitting a certain large object to fall down said shaft and strike plaintiff without protection or notice thereof; and, third, that the defendant knew, or should have known, of the danger to plaintiff from said falling object, and that it failed to exercise ordinary care to warn plaintiff against the falling of said object. The answer is a general denial.

The defendant owns and operates a freight elevator in the Post-Dispatch building, running from the basement up through the sidewalk on Twelfth street. The platform is about 4 feet wide and 7 feet long, and there are iron doors opening from the elevator shaft in the sidewalk which when closed form a part of the pavement. When the elevator is in use, the doors stand open in a slanting position. Trucks were used by defendant to haul waste paper into the elevator, and same would then be hoisted up and beyond the sidewalk, so that it could be loaded onto wagons backed up to the curb.

Plaintiff testified that he had worked for defendant for about 6 years; that he was required by the foreman to clean up the pit of the elevator as soon as the last load of waste paper had been taken out. On this occasion he said that he waited until the last load of waste paper had been elevated, and then he went into the pit to clean same. The elevator at that time had ascended 3% or 4 feet above the doors in the sidewalk, which had been left open in a funnel shape, so that there were openings between the floor of the elevator and the mouth of the shaft, and, while plaintiff was so engaged in cleaning the pit, a roll of paper 72 inches long and about 5 inches in diameter, fell from the truck through the opening of the shaft and struck him on the head and injured him. Plaintiff testified that Mr. Quelch, defendant's foreman, had instructed him with reference to cleaning out the pit, and that he was ordered to keep it clean. When asked whether he had any regular time to start cleaning the pit in the morning, he said he always started to clean it immediately after the last truck load of paper was hauled up, and that on this occasion he proceeded in the customary way by waiting until the last truck load had ascended. Plaintiff said that things fell from this platform of the elevator almost every day, that the truck was not guarded, nor the opening in the shaft closed or in anywise protected, nor that any notice or warning was given him of the falling of this roll of paper.

There is direct evidence from another witness for plaintiff that he saw the roll of paper fall from the truck into the opening of the elevator shaft on this occasion, also that other bundles of paper would often fall in between the bottom of the elevator and the opening of the shaft while the paper was being unloaded from this elevator.

As to the extent of his injuries, plaintiff testified that his eyes before the injury were normal; that he was knocked down and cut about the face and head; that several teeth were loosened, and that the injury still bothered him at the time of the trial; at the time of the injury, his eye was bleeding from the inside; that he was then receiving a wage of $23 a week; and that he had to give up his work on account of his injuries, and has not been able since to earn as much as he did before the accident. Plaintiff said the injured eye had affected the other eye. There was testimony from a medical expert that plaintiff at the time of the injury suffered slight symptoms of concussion of the brain; that he had lacerations an inch and a half long on the side of his nose; that the eye was inflamed and discolored, showing signs of traumatic iritis; and that the injury to the eye was sufficient to produce iritis. When asked what effect that would have on his eye, this physician, Dr. Loescher stated that if the injury did not heal up perfectly and get fully well it would impair the sight to a certain extent. When asked whether the injury would cause future pain, the witness said it may or may not; he could not say. He was asked the direct question whether the condition of the eye as he found it was permanent, to which he answered: "I think the eye condition is permanent."

Appellant's brief contains 12 assignments of error, not a few of which contain many subdivisions. A demurrer to the evidence being overruled, defendant requested 12 instructions; 3 being given and 9 being disallowed. It might serve a good purpose in this connection to state that it has been authoritatively ruled in this jurisdiction, beginning with the case of Crawshaw et al. v. Sumner, 56 Mo. 517, that the lower court may be justified in the refusing of instructions asked by a defendant when more instructions are asked than are required. However, we have examined the objections made to the rulings on the instructions, and we will discuss the points only that we think are reasonably debatable.

It is insisted that the demurrer to the evidence should have been sustained, because there is no substantial evidence upon which to ground actionable negligence. We begin then with the fundamental principle that it is the duty of the master to exercise ordinary care to furnish the servant with a reasonably safe place in which to work and reasonably safe...