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

• Citation: 120 Mo. App. 59,96 S.W. 673
• Parties: OBERMEYER v. F. H. LOGEMAN CHAIR MFG. CO.
• Decision Date: 09 July 1906
• Court: Court of Appeal of Missouri (US)

96 S.W. 673

120 Mo. App. 59

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

St. Louis Court of Appeals. Missouri.

July 9, 1906.

1. NEGLIGENCE — DANGEROUS APPLIANCES — ELEVATORS.

Proper care in the construction of freight elevators does not, in general, require that they be wholly inclosed or sheathed.

2. MASTER AND SERVANT—INJURIES TO SERVANT—NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to a servant by having his foot caught between the floor of an elevator and strips nailed on the floor beams, evidence held to require submission of the issue of negligent construction of the elevator to the jury.

3. SAME—CONTRIBUTORY NEGLIGENCE.

Plaintiff, a boy 14 years and 11 months of age, was standing near the edge of defendant's elevator, but not in a position to be caught between it and certain strips nailed on the floor beams to lessen the space between them. Plaintiff was leaning on the shoulder of another boy, who stepped back on plaintiff's foot, to relieve which plaintiff stepped back, when his heel was caught. Held, that plaintiff was not guilty of contributory negligence as a matter of law.

4. SAME—ASSUMED RISK.

Where defendant negligently lessened the space between its elevator and the floors of the building by nailing strips to the floor beams less than the full width of the beams, plaintiff, a servant, did not assume the risk of injury from such dangerous construction by continuance in his employment, though by the exercise of ordinary care he could have known of the danger.

5. SAME—PROXIMATE CAUSE.

Plaintiff and a fellow servant were riding on defendant's elevator, when the latter stepped on plaintiff's foot. Plaintiff immediately pulled his foot back, when his heel was caught between the floor of the elevator and strips negligently nailed to the floor beams for the purpose of reducing the space between the elevator and the floor. Held, that defendant's negligent construction of the elevator well, and not the act of plaintiff's fellow servant, was the proximate cause of the injury.

6. WITNESSES — COMPETENCY — PRIVILEGE — PHYSICIANS.

Rev. St. 1899 § 4659, declares that a physician shall be incompetent to testify concerning any information acquired from a patient while attending him professionally, which information was necessary to enable him to prescribe for the patient. Plaintiff, on sustaining an injury to his foot, was sent by defendant to a physician employed by the latter to treat plaintiff, when the physician interviewed plaintiff as to his condition, in order to treat him professionally, and also to get admissions advantageous to his employer. Held, that the physician was incompetent to testify as to any of the statements made by plaintiff at such interview.

7. EVIDENCE — EXPERTS — SUBJECTS OF EXPERT TESTIMONY.

In an action for injuries to a servant by his foot becoming caught between the floor of an elevator and strips nailed on the floor beams, evidence of an expert that the strips were unnecessary and formed a cage that would catch anything that might get in their way, and that such was not the ordinary method of finishing the well hole of an elevator, was not objectionable as an improper subject for expert testimony.

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

Action by John Obermeyer, Jr., by his next friend, etc., against the F. H. Logeman Chair Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

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 contract 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 three 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 floors. 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 extend 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 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...