Meade v. Missouri Water & Steam Supply Company

• Decision Date: 07 December 1927
• Docket Number: 26232
• Parties: Clarence L. Meade, a Minor, by Lute B. Meade, Next Friend, v. Missouri Water & Steam Supply Company, Appellant
• Court: Missouri Supreme Court

300 S.W. 515

318 Mo. 350

Clarence L. Meade, a Minor, by Lute B. Meade, Next Friend, v. Missouri Water & Steam Supply Company, Appellant

No. 26232

Supreme Court of Missouri

December 7, 1927

Appeal from Buchanan Circuit Court; Hon. Samuel Wilcox Judge.

Affirmed.

John E. Dolman for appellant.

(1) As between master and servant where the servant or his associates have knowledge or opportunity to know of the defect in the machinery or other instrumentality which caused his injury, the rule res ipsa loquitur does not apply, but the master's negligence must be proved, and if not proved plaintiff must be nonsuited. Sabol v Cooperage Co., 282 S.W. 430; Klebe v. Distilling Co., 207 Mo. 480; Haynie v. Packing Co., 126 Mo.App. 88; Glasscock v. D. G. Co., 106 Mo.App. 657; Removich v. Const. Co., 264 Mo. 43; Helgeson v Higley Co., 148 Iowa 587; Note to Midland Valley Rd. v. Fulgham, L. R. A. 1917E, 4-34. The doctrine of res ipsa loquitur can only be applied as between master and servant where the injury to the servant is caused by some appliance peculiarly within the knowledge and control of the master of which the servant is ignorant and with which he had nothing to do. Populonris v. Goebel Const. Co., 213 S.W. 792; Dougherty v. Mining Co., 207 S.W. 254; Reicke v. Brewing Co., 227 S.W. 631; Kuether v. Light & Power Co., 276 S.W. 108; Porter v. Ry., L., H. & P. Co., 277 S.W. 913; Stolle v. Brewing Co., 271 S.W. 497; Hamilton v. Southern Ry., 123 Mo.App. 619. It is necessary, in order for plaintiff to invoke the doctrine of res ipsa loquitur, for him to show that defendant had exclusive control of the instrumentality which caused the injury at the time of the accident and of its usual movements. Mayme v. Rys. Co., 229 S.W. 390; Ash v. Woodward & Tiernan Co., 189 S.W. 997; Thompson v. Railroad, 243 Mo. 336; Gibler v. Railroad, 148 Mo.App. 475. (2) The mere fact that the elevator dropped as a result of the breaking of the timbers supporting the machinery is insufficient to make out a prima-facie case for plaintiff. Removich v. Const. Co., 264 Mo. 43.

Duvall & Boyd and Miles Elliott for respondent.

The doctrine of res ipsa loquitur applied to the case and the court did not err in trying and submitting the case on that theory. Eckhardt v. Electric Mfg. Co., 235 S.W. 117; Ash v. Woodward & Tiernan Co., 199 S.W. 994; Jones v. Railway, 178 Mo. 528; Collinsworth v. Zinc Co., 260 Mo. 692; Taul v. Saddlery Co., 229 S.W. 420; Stroud v. Cold Storage Co., 285 S.W. 165; Miller v. Fire Clay Products Co., 282 S.W. 141; Lowe v. Laundry Co., 274 S.W. 857; Daugherty v. Mining Co., 207 S.W. 253; Gibler v. Railroad, 148 Mo.App. 475; Ferguson v. Fulton Iron Works, 259 S.W. 811; State ex rel. Fulton Iron Co. v. Allen, 289 S.W. 583; Kneemiller v. Foundry Co., 291 S.W. 506.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

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 enclosed, 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 crossbeams, which supported the frame work which sustained and held this machinery sheave wheels or pulleys, and other means of operation. This supporting frame work at the top, and the wheels, cable and other apparatus were not enclosed, 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 nineteen and twenty years of age at the time of his injury, and had been in the employ of defendant for about five 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 five months of service to defendant, he had ridden on this elevator carrying materials thereon often, probably a thousand 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 ten 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 door steps," which had been used in the sales room for setting articles thereon, displayed for sale; that this contrivance or arrangement of boards, was about five feet long, and was set on and in the elevator; that when so set, it was not more than five 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, he 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 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 thirty inches, and that these boards were ten feet and five 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...