Northern v. Chesapeake & Gulf Fisheries Co.

• Decision Date: 30 July 1928
• Docket Number: No. 26799.,26799.
• Citation: 8 S.W.2d 982
• Parties: WILLIAM S. NORTHERN v. CHESAPEAKE & GULF FISHERIES COMPANY, Appellant.
• Court: Missouri Supreme Court

8 S.W.2d 982

WILLIAM S. NORTHERN v. CHESAPEAKE & GULF FISHERIES COMPANY, Appellant.

No. 26799.

Supreme Court of Missouri, Division One.

July 30, 1928.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

AFFIRMED.

Mertsheimer & O'Donnell, E.M. Tipton and Grover & Graves for appellants.

(1) The peremptory instruction in the nature of a demurrer offered by the defendant at the close of all the evidence should have been sustained. (a) Plaintiff's petition contained several grounds of negligence, but his case was submitted to the jury only on the ground that defendant failed to provide a reasonably sufficient gate or bar to prevent persons from falling in the elevator shaft. This ground of negligence should not have been submitted to the jury, because defendant did have a door on the east side of the elevator shaft. It was not therefore necessary to have a guard or gate on that side of the elevator; nor does the law require defendant to have a gate or guard that would work automatically with the elevator. (b) The failure of the defendant to have a gate or guard (or even a door) at the east side of the elevator shaft was not the proximate cause of the plaintiff's injury. Plaintiff was caused to fall by the slick, wet and slimy substance on the end gate and the ledge which was the result of the loading of frozen salt fish over the ledge and end gate. This wet, slick and slimy condition of the ledge and end gate was open, obvious and fully known to the plaintiff. (c) The evidence fails to show who moved the elevator while plaintiff was fastening the last barrels on his truck. The burden of proof was on the plaintiff to prove that it was not a fellow-servant or outsider who moved the elevator; the evidence was insufficient to submit the case to the jury because it left the jury to speculate as to whether the removal of the elevator from the first floor was by a fellow-servant, an outsider, or a vice-principal. (d) Plaintiff was guilty of contributory negligence as a matter of law. It was necessary for plaintiff to move the truck away from the door which was in front of the elevator shaft so that the end gate on the body of the truck could be raised. Plaintiff voluntarily moved the truck only a short distance from the lodge and voluntarily put his foot on the end gate and ledge which was slick, slimy and wet when he could have moved the truck a sufficient distance from the elevator shaft so that he would not have fallen into the same. Plaintiff was further guilty of contributory negligence when he took the position upon the truck and ledge in the condition that they were in (and known to him) without looking to see whether the elevator was level with the ledge or not. Plaintiff knew that the elevator was being used at that time to bring down barrels of this frozen salt fish for other drivers of the same company who were waiting to have their trucks loaded. (e) The defendant had provided a door on the east side of the elevator at the place where plaintiff was injured and plaintiff could have pulled the same down and closed the opening, which would have prevented his falling into the elevator shaft. In failing to do so, plaintiff was guilty of contributory negligence. Authorities for all of above points: State ex rel. v. Cox, 276 S.W. 869; Schaller v. Lusk, 184 S.W. 1179; Boatman v. Lusk, 190 S.W. 414; City of Dallas v. Maxwell, 248 S.W. 667; Purcell v. Shoe Co., 187 Mo. 276; Doerr v. Brewing Assn., 176 Mo. 547; State ex rel. v. Trimble, 279 S.W. 60; Van Bibber v. Swift & Co., 228 S.W. 77; Haake v. Stove & Range Co., 234 S.W. 1061. (2) The court erred in giving Instruction P-1 asked on behalf of the plaintiff, because said instruction is not the law of this case. It required the defendant to have a reasonably sufficient gate or guard to an elevator shaft which opened into an alley, in addition to a door that was already there. It is confusing and misleading, because it requires the jury to find that no regular operator was employed by the defendant to operate said elevator, yet the instruction does not say that the defendant was negligent if it did not employ a regular operator. It is further confusing and misleading in that it requires the jury to find the ledge and end gate wet, slick and slimy, and yet does not require the jury to find that the maintaining of the ledge and end gate in such condition was negligent on its part. It was the inherent nature of the commodity handled to spill a wet, slick and slimy substance on anything over which it was handled, which was admitted by all the witnesses and known to the plaintiff, and said ground of negligence which was pleaded by the plaintiff was withdrawn from the jury. Cases under Point 1; Williams v. Ranson, 234 Mo. 66; Stid v. Railway Co., 236 Mo. 382; Stuart v. Dickinson, 236 S.W. 459; Knapp v. Hanley, 153 Mo. App. 169. (3) The court erred in refusing to give Instruction D-8 requested by the defendant, for the reason that said instruction told the jury that the defendant was not negligent in failing to have an automatic gate on the east side of said elevator shaft. Neither the statutes nor the common law require the defendant to have a gate that would work automatically with the elevator, and especially is this true when the gate or guard is to protect an outside entrance where they already have the entrance protected by a door. This case was submitted to the jury on common-law negligence, therefore this instruction should have been given. Pureell v. Shoe Co., 187 Mo. 276; Hake v. Stove & Range Co., 234 S.W. 1061. (4) The verdict of the jury was so excessive as to indicate that it was the result of passion and prejudice. (5) The court erred in not discharging the jury at the opening of the case upon motion of the defendant, because of the prejudicial questions asked by plaintiff's attorney upon their voir dire examination of the jury. The method employed by counsel for the plaintiff in examining the jury as to whether or not any of them were interested in any insurance company that wrote policies indemnifying persons against claims for personal injuries was not the proper method, and shows that it was not asked in good faith but only to prejudice and poison the mind of the jury, and was prejudicial, and this cause should be reversed because the court did not discharge the jury as requested by this defendant. Dudacs v. Hotel Statler, 295 S.W. 827; Chambers v. Kennedy, 274 S.W. 727; Trent v. Printing Co., 141 Mo. App. 437; Pettit v. Goetz Sales Co., 281 S.W. 974; Kelley v. Sinn, 277 S.W. 362; Balderson v. Monaghan, 278 S.W. 783; Campbell v. Pope, 297 S.W. 720; Hill v. Jackson, 272 S.W. 107; Pilkerton v. Miller, 283 S.W. 455; Planet v. McFall, 284 S.W. 853.

Madden, Frecman & Madden and H.G. Pope for respondent.

(1) The demurrer to the evidence was properly overruled. (a) The fact that appellant provided a fire door on the elevator entrance in question, which door was never closed during the day except in inclement weather, was not designed as a protection against the open shaft or as a gate or guard therefor, and had no connection with the operation of the elevator under the habitual custom and practice of appellant, does not as a matter of law acquit appellant of the charge of negligence for failure to provide a reasonably sufficient gate or guard at such point. Wendler v. Furnishing Co., 165 Mo. 527; Hake v. Stove Co., 234 S.W. 1061. (b) Appellant's failure to provide a reasonably sufficient gate or guard at the point in question was the proximate cause of respondent's injury; and in any event, such question of proximate cause was a matter for the jury and did not constitute a ground for demurrer. Buckner v. Horse & Mule Co., 221 Mo. 700; Walter v. Cement Co., 250 S.W. 587; Fishell v. American Press, 253 S.W. 508; Benton v. St. Louis, 248 Mo. 111; Musick v. Packing Co., 58 Mo. App. 333; Brueggemann v. Ice Co., 171 Mo. App. 66; Rose v. Gunn Fruit Co., 201 Mo. App. 276; Obermeyer v. Chair Co., 120 Mo. App. 59; Bassett v. City of St. Joseph, 53 Mo. 290; Newcomb v. Railroad, 169 Mo. 409; Harrison v. Electric Co., 195 Mo. 606; Grott v. Shoe Co., 2 S.W. (2d) 785. (c) The removal of the elevator was not submitted as a charge of negligence against appellant; its removal was accomplished according to the usual custom of appellant; and whether it was removed by vice-principal or fellow-servant of respondent is immaterial to recovery here. (d) Respondent was not guilty of negligence as a matter of law. Katz v. Development Co., 258 S.W. 752; Unrein v. Hide Co., 295 Mo. 353; Baldwin v. Coffee Co., 216 S.W. 998; Walter v. Cement Co., 250 S.W. 587; Fishell v. American Press, 253 S.W. 508; Brueggemann v. Ice Co., 171 Mo. App. 59; Musick v. Packing Co., 58 Mo. App. 322; Grott v. Shoe Co., 2 S.W. (2d) 785. (2) Instruction P-1 was not erroneous. Oglesby v. Ry. Co., 1 S.W. (2d) 180; Katz v. Development Co., 258 S.W. 757; Knapp v. Hanley, 153 Mo. App. 169; Baldwin v. Coffee Co., 216 S.W. 1002; Kidd v. Ry. Co., 310 Mo. 40; Wolfe v. Payne, 294 Mo. 187; Crowl v. Oil Co., 255 Mo. 305; Andrew v. Linebaugh, 260 Mo. 651; Weller v. Railroad, 164 Mo. 180; Walter v. Cement Co., 250 S.W. 587; Block v. Guaranty Co., 290 S.W. 439; Bollinger v. Mfg. Co., 249 S.W. 912. (3) The refusal of Instruction D-8 does not constitute error. (a) If respondent's submission did constitute an abandonment of the ordinance as an independent ground of recovery, the refusal of an instruction withdrawing such charge of negligence from the consideration of the jury could not constitute prejudicial error. Dietzman v. Screw Co., 300 Mo. 196; Lewis v. Packing Co., 3 S.W. (2d) 244; Bloomchamp v. Mo. Pac. Ry. Co., 208 Mo. App. 464; Carney v. Brewing Assn., 150 Mo. App. 437; Jepson v. Transfer Co., 243 S.W. 373; Kinlen v. Railroad, 216 Mo. 145. (b) This instruction was further properly refused: Because it purported as a matter of law to discharge appellant from any duty to provide an automatic gate...