Meade v. Missouri Water & Steam Supply Co.

• Decision Date: 07 December 1927
• Docket Number: No. 26232.,26232.
• Citation: 300 S.W. 515
• Court: Missouri Supreme Court
• Parties: MEADE v. MISSOURI WATER & STEAM SUPPLY CO.

300 S.W. 515

MEADE v. MISSOURI WATER & STEAM SUPPLY CO.

No. 26232.

Supreme Court of Missouri, Division No. 1,

December 7, 1927.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

Action by Clarence L. Meade, a minor, by Lute B. Meade, next friend, against the Missouri Water & Steam Supply Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John E. Dolman, of St. Joseph, for appellant.

Duvall & Boyd and Miles Elliott, all of St. Joseph, for respondent.

LINDSAY, C.

This is an action for damages for personal injuries sustained by the plaintiff, respondent here, as the result of the falling of a freight elevator in which plaintiff was riding in defendant's place of business, and while he was in the employ of defendant.

The petition did not allege specific acts of negligence on the part of defendant, but the case was brought and tried under the doctrine of res ipsa loquitur. The sole question presented by the defendant on its appeal is whether the plaintiff made a case at all. The defendant was engaged in the sale of water, steam, and plumbing supplies and machinery, in the city of St. Joseph, and the elevator in question was used to move merchandise and other articles between the first and second floors of the building occupied by the defendant in its business. It was described as being a hand-power elevator, converted into an electric elevator. It was not inclosed, and the platform moved up and down, in a frame of four upright posts. These extended from the ground floor to the top of the second floor. At and near the ceiling above the second floor, the electric motor was located, and the wheels and machinery, including a drum about which operated a cable. There' were two cross-beams which supported the framework which sustained and held this machinery, sheave wheels or pulleys, and other means of operation. This supporting framework at the top, and the wheels, cable, and other apparatus were not inclosed, but could be seen in looking upward from the platform of the elevator. It was set in motion by pulling the cable. Thereby the platform, if at the ground floor, was caused to move upward and stop automatically at the second floor and similarly, when at the second floor, to descend and automatically stop at the ground floor. It was constructed so as to operate only between the first and second floors. The allegations which characterized the nature of the cause of action were that, while the plaintiff, in the performance of his duties, was riding in the elevator which was ascending from the first to the second floor, and after it had ascended to a great height above the first floor, the elevator, "by reason of the negligence of defendant, was permitted and caused to fall" whereby plaintiff was injured; that the elevator in its control and maintenance was wholly in charge of the defendant, and wholly within the knowledge of defendant; that plaintiff had no duties in connection with the elevator, except in carrying, or assisting to carry, freight thereon for defendant, and had no duty in its care and maintenance; was ignorant of the details of its construction, and of the parts and machinery, and had no means of knowledge of the cause or causes which resulted in its falling; and that all such information was in the possession of defendant and its servants in charge of its maintenance and upkeep.

After a general denial, the answer alleged that a part of plaintiff's duties was the moving of materials from the ground floor to the second floor, and that, at the time of his accident, he negligently placed a long board or timber, standing it upright in the elevator, which, so placed, extended upward above the framework of the elevator; and thereupon plaintiff negligently got upon the elevator contrary to a rule given him not to ride upon it while carrying materials thereon, and so carelessly operated the elevator as to cause said upright plank or timber to strike against the operating machinery at the top of the elevator, and cause it to stop, and that thereupon plaintiff jumped off the elevator, whereby he was injured.

The plaintiff was between 19 and 20 years of age at the time of his injury, and had been in the employ of defendant for about 5 months. Before that time he had lived upon a farm. On behalf of plaintiff no other witness than plaintiff himself testified concerning the circumstances under which he was injured. He testified that his duties for defendant were to do anything "they wanted me to do"; that he worked under all of them, that is, under all of the defendant's employees except one, a boy younger than himself ; that he knew nothing about the elevator or its machinery except to start and to stop it; that he had seen other elevators, but had not seen any other elevator like this one; that, during his 5 months of service to defendant, he had ridden on this elevator, carrying materials thereon often, probably 1,000 times during that period. He testified that he did not know what caused the elevator to drop or fall, and had no way of knowing what caused it to do so.

One of plaintiff's attorneys testified that, before the suit was filed for plaintiff, he went, to defendant's place of business, and asked to be permitted to see the elevator, and that the persons in charge of the place refused to allow him to go back and see the elevator; and that two or three days thereafter he went again, and defendant's manager refused to allow him to go back to the elevator and make an examination. The plaintiff testified that, on the morning of his injury, at about 10 o'clock, he and Mr. Penland, one of defendant's employees, were moving some things from the first to the second floor, on the elevator, and that he was working under the orders and directions of Penland; that Penland loaded on the elevator a contrivance, consisting of three pieces of board fastened together, forming "something like wooden doorsteps," which had been used in the salesroom for setting articles thereon, displayed for sale; that this contrivance or arrangement of boards was about 5 feet long, and was set on and in the elevator; that, when so set, it was not more than 5 feet high; that he got on the elevator with Penland, at the request of Penland; that Penland started the elevator by pulling the cable; that the elevator "went up all right for a ways, and all at once it began to fall"; that the last thing he remembered he was standing on the elevator getting ready to jump; that then the elevator was about four feet from the second floor; that, the next thing he knew after that, be was in the hospital. The ground floor was of concrete, and in plaintiff's fall upon it he sustained a fractured skull.

Penland, called by defendants, testified that that they were moving some things from the first to the second floor; that he and the plaintiff put on the elevator three boards, which were cleated and held together edge to edge; that in this form they were of the width of about 30 inches, and that these boards were 10 feet 5 inches in length; that this conjuncture of boards was set on end in the elevator, and that he (Penland) so arranged it that he thought it would not strike the beams supporting the wheels and machinery at the top, but that he miscalculated the space; and, when the elevator ascended, the plank struck the beams at the top, broke them, and displaced the wheels and machinery at the top, causing the elevator to fall. It did not fall completely to the ground floor, but the misalignment of the machinery appears to have caused it to lock, and to stop before reaching the ground floor.

The plaintiff, on his cross-examination, was shown a board, and asked if it was the one placed upon the elevator at the time in question by Penland, and said it was not; that the board so shown to him was not fixed like the one put on the elevator, and was about twice as long. Several of defendant's other employees who were in the building at the time of plaintiff's injury testified that, when their attention was directed to it by the occurrence of the accident, a board 10 feet in length was standing in the elevator, and that the platform was about 6 feet above the ground floor; that the board was one which had been used in the display room, and had holes in it to hold and display closet bowls.

Defendant introduced a machinist, who testified that, after the accident to plaintiff, and on the same day, he was called to repair the elevator; that he found the supports and parts of the frame, which held in proper place and alignment the wheels and machinery, had been split, and pushed out of position, and the elevator was out of the guides controlling its motion up or down. He said the center piece of the frame was split, and a piece pushed out, and certain screws had been pushed up out of their holes. In his examination he made the following statement:

"It looked like to me that there had been something put on the elevator and pushed the top of it out. It could not have gone no other way."

He repaired it by replacing and bolting the displaced pieces, and supplying a new piece "that went across to hold that sheave wheel up." There was no testimony of any observation by any one of there being any derangement of the elevator appliances, prior to the time plaintiff was injured, nor, on the contrary, of an observation that there was no derangement; but the existence or nonexistence of any defect or derangement prior to the time of plaintiff's injury, and the cause of such, if any, rests upon inference under the positive and opposing statements of plaintiff and of other employees. The plaintiff stated positively that the doorstep like article of plank placed in the elevator was not more than 5 feet high, and the others stated that the article so placed was the board or joined and cleated boards 10 feet and some inches in height, and, with these statements, is the opinion or conclusion of the machinist as to the manner in which the...