Obermeyer v. F. H. Logeman Chair Mfg. Co.

• Decision Date: 31 May 1910
• Citation: 129 S.W. 209,229 Mo. 97
• Parties: OBERMEYER v. F. H. LOGEMAN CHAIR MFG. CO.
• Court: Missouri Supreme Court

129 S.W. 209

229 Mo. 97

OBERMEYER v. F. H. LOGEMAN CHAIR MFG. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1910.

Rehearing Denied June 14, 1910.

Appeal from St. Louis Circuit Court; Jno. W. McElhinney, Judge.

Action by John Obermeyer, Jr., by his next friend against the F. H. Logeman Chair Manufacturing Company. Certified from the St. Louis Court of Appeals on affirmance of a judgment for plaintiff. 120 Mo. App. 59, 96 S. W. 673.

Wise & McNulty and Seddon & Holland, for appellant. A. R. Taylor and Julius T. Muench, for respondent.

WOODSON, J.

This cause was tried in the circuit court of the city of St. Louis, and resulted in a judgment in favor of the plaintiff for the sum of $3,000. The defendant appealed the cause to the St. Louis Court of Appeals, where the judgment of the circuit court was affirmed in a very able and exhaustive opinion written by Judge Bland, in which Judge Goode concurred, and from which Judge Nortoni dissented. Because of this dissent the cause was certified by that court to this.

After a very careful consideration of Judge Bland's opinion, we find that he has carefully considered each and every question presented by the record; and in our opinion he correctly disposed of each and all of them, leaving nothing new to be added by this court, except we have added a few additional authorities supporting some of the legal propositions so ably decided by that court, which we embraced in brackets. We therefore adopt the opinion of the St. Louis Court of Appeals as the opinion of this court in this cause (120 Mo. App. 59, 96 S. W. 673), which is in words and figures as follows:

"The appellant is a corporation engaged in the manufacture of chairs, in the city of St. Louis. On June 23, 1902, the respondent, then 14 years and 11 months old, was in the employ of the appellant, and at work on its freight elevator. As the elevator ascended from the first floor, the respondent's foot was caught, at the third or fourth floor, between the elevator and a projecting strip of timber nailed on the floor beam, and so badly crushed as to necessitate the amputation of his leg about 10 inches below the knee. The suit is to recover for the injury. The negligence alleged, and relied upon at the trial for recovery, is as follows: `That said elevator upon two sides thereof was not provided with gates or guards to prevent persons riding thereon from coming in contact with obstructions in the shaft; that between the sides so left open and the walls of the shaft was a space of several inches; that from each floor there extended a strip or sill of wood several inches in width and reaching to the sides of said elevator so exposed; that the failure to inclose said elevator on said sides and the extension of said strip into said elevator shaft made it extremely dangerous and hazardous to ride upon said elevator, in that persons so riding thereon were apt to come in contact with said sill; that defendant carelessly and improperly exposed plaintiff to the dangers of said elevator and negligently omitted to give plaintiff notice of such dangers or instructions to protect himself from injury.'

"The answer was a general denial and the following plea of contributory negligence: `Further answering, the defendant states that whatever injuries, if any, were sustained by plaintiff on the occasion mentioned in his petition by and on account of the matters and things in said petition set forth, were caused by the negligence of plaintiff directly contributing thereto in this, to wit: That on the said occasion said plaintiff, while ascending in an elevator, carelessly and negligently stood near the edge of the said elevator platform, and as said elevator ascended said plaintiff carelessly and negligently allowed a portion of his foot to project over the edge of said elevator platform in such a manner as to allow it to be struck by a portion of the siding or inclosure of said elevator. And defendant states that the said acts of negligence on the part of said plaintiff directly contributed to cause whatever injuries, if any, were sustained by him on said occasion.' A reply was filed denying the new matter stated in the answer.

"The elevator was simply a board platform constructed of rough boards with no cage or shield, and four uprights connected at the top and running in grooves. The north side of the shaft in which the elevator ran was inclosed by a solid brick wall, the south side by a solid wooden wall. The east and west sides were not inclosed, except by doors on each floor which opened and closed automatically as the elevator ran up or down. There were five floors in the building; each story being about 7½ feet high. The distance between the elevator platform and the several floors abutting the elevator shaft was about 3 inches. To lessen these openings for the purpose of preventing the legs of chairs catching between the elevator and the floors when dragged from one to the other, a strip of timber 1½ inches square was nailed on the floor beams on a level with the floor. The floor beams are 12 inches wide.

"Respondent testified that he had been working in the factory for several months, at different jobs, but had not worked on the elevator until about 12 days before he was injured; that by direction of the boss he and several of the boys about his own age, for 12 days prior to his injury, between the hours of 5 and 6 p. m., had worked on the elevator, removing chairs from the upper to the lower floors; that on the day of his injury two loads of chairs had been carried down, and the elevator was going up to the fifth floor for the third load; that while he was leaning on the shoulder of one of the boys (Clyde Harder) facing east, Harder stepped back on his toes, and he threw his foot back, and his heel was caught between the elevator and the projecting strip at the third floor and crushed. He further testified that he knew the strips were on the sills, knew that if he got his foot caught between one of them and the elevator he would be hurt; that it was dark on the first floor, but not so dark on the second and third floors as to prevent one from seeing his surroundings. He also stated that he had not been warned by the foreman or any one else to look out and be careful not to let his foot get caught between the elevator.

"Respondent introduced testimony of an expert, tending to show that the construction adopted by appellant was not the usual construction of elevator shafts, but that the usual construction was either to have the 12-inch beam extended out further so as to be within 1½ inches of the passing elevator, or else to fasten a sill at each floor, and have the said sill, instead of extending down one inch, extend down the entire width of the beam. Said expert expressed the opinion that either of said constructions would obviate the dangers incident to a construction like that adopted by appellant.

"The testimony in behalf of appellant tended to show that the shaft construction adopted by it was the usual construction, omitting the strips on the floor beams. This was shown by an ex-inspector of elevators of the city of St. Louis, one of whose duties was to examine this freight elevator for a period of eight years, during which time he examined it four times a year, and every time issued a certificate of indorsement; also by an employé of the Moon Elevator Company who had been in the business for 17 or 18 years.

"As to the happening of the accident, the testimony on behalf of appellant tended to show that the respondent had been several times warned to be careful while using the elevator and not to indulge in play. The testimony on behalf of the appellant also tended to show that at the time the respondent was injured he was `skylarking,' and while so doing allowed his foot to project beyond the floor of the elevator. Appellant offered to show by Dr. Amyx that the respondent stated to him the day of the accident that he was kicking back against the wall of the inclosure of the elevator, and that this was what caused his accident. This was objected to by the respondent on the ground that the communication was privileged. The objection was sustained, and appellant saved exceptions. The testimony for appellant also tended to show that the construction suggested by respondent's expert, to wit, to have the 12-inch beam extend out further, or the sill extend down the entire length of the beam, would not, in any way, be less dangerous than the construction adopted by appellant, or in any way obviate any of the dangers incident to the construction adopted by appellant.

"The trial resulted in a verdict for $3,000 in favor of the respondent and against the appellant. The latter filed its motion for a new trial in due time, which was overruled, and it appealed.

"BLAND, P. J. (after stating the facts).

1. At the close of respondent's evidence, the appellant moved for a peremptory nonsuit, which the court refused. This ruling is assigned as error. If the respondent's evidence shows that the elevator furnished him was a reasonably safe place to work, or if the evidence is all one way that respondent himself was guilty of negligence that directly contributed to his injury, he should have been nonsuited.

"Webb on Elevators, § 17, says: `Proper care in the construction of freight elevators does not require that they be wholly inclosed or sheathed, and this may be considered a general rule, although there may be exceptions'—citing Hoehmann v. Moss Engraving Co., 4 Misc. Rep. 160, 23 N. Y. Supp. 787. The same authority, at section 14, says: `In all cases except where the failure to exercise care is in violation of some statute, or willful, or such reckless disregard for the personal safety of others as to amount to negligence per se, the questions of fact arising in the case and the estimate of prudence are for the jury to determine.'

"Respondent offered some evidence tending to show that the accident was due...