Obermeyer v. Logeman Chair Manufacturing Company
| Decision Date | 09 July 1906 |
| Parties | OBERMEYER, JR., by his next friend, Respondent, v. LOGEMAN CHAIR MANUFACTURING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.
AFFIRMED.
STATEMENT.--The appellant is a corporation engaged in the manufacture of chairs, in the city of St. Louis. On June 23, 1902, the respondent, then fourteen years and eleven 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 ten 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 enclose 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:
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 groves. 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 enclosed, 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 seven and one-half 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 one and one-half inches square was nailed on the floor-beams on a level with the floor. The floor-beams are twelve 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 twelve days before he was injured; that by direction of the boss, he and several of the boys about his own age, for twelve days prior to his injury, between the hours of five and six 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 lookout 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 twelve-inch beam extended out farther so as to be within one and one-half 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 employee of the Moon Elevator Company who had been in the business for seventeen or eighteen years.
As to the happening of the accident, the testimony on behalf of appellant tended to show that the respondent and 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 enclosure 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 exception. The testimony for appellant also tended to show that the construction suggested by respondent's expert, to-wit, to have the twelve-inch beam extend out farther, 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 three thousand dollars 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.
Judgment affirmed.
Wise & McNulty and Seddon & Holland for appellant.
(1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence. (a) Because there was no evidence to sustain any of the allegations of negligence contained in respondent's petition. (b) Because the evidence clearly showed that the risk or riding on the elevator was assumed by the respondent. Devitt v. Railroad, 50 Mo. 302; Cagney v Railroad, 69 Mo. 416; Smith v. Railroad, 69 Mo 32; Price v. Railroad, 77 Mo. 510; Flynn v. Railroad, 78 Mo. 195; Nugent v. Milling Co., 131 Mo. 241, 33 S.W. 428; Lucey v. Hannibal Oil Co., 129 Mo. 32, 31 S.W. 340; Fugler v. Bothe, 117 Mo. 475, 22 S.W. 113; Steinhauser v. Spraul, 127 Mo. 541, 28 S.W. 620, 30 S.W. 102; Epperson v. Postal, 155 Mo. 346, 50 S.W. 795, 55 S.W. 1050; Roberts v. Telephone Co., 66 S.W. 157; Mathias v. Kansas City, etc., 84 S.W. 66; Washington, etc., R. R. Co. v. McBride, 135 U.S. 554; Choctaw & Oklahoma v. McDade, 191 U.S. 64; Miller v. Cordage Co., 126 F. 195; Higgins v. Carpet Co., 79 F. 900; Kneisley v. Pratt, 148 N.Y. 372; Sullivan v. Mfg. Co., 113 Mass. 396; Goodrich v. Washington Mills, 160 Mass. 234; O'Malloy v. Boston Gas, 158 Mass. 135. (2) The court erred in giving instruction No. 1 at the instance of respondent. Stone v. Hunt, 114 Mo. 66, 21 S.W. 454; State v. Hope, 102 Mo. 410, 14 S.W. 985; Evans v. Interstate Co., 106 Mo. 59, 17 S.W. 489; State v. Brown, 145 Mo. 680, 47 S.W. 789; Wilkerson v. Eilers, 114 Mo. 345, 21 S.W. 514. (3) The court erred in giving instruction No. 2 at the instance of respondent. Because under the evidence in this case respondent did assume the risk of being injured as he was. See authorities under heading 1 supra. (4) The court erred in refusing to allow appellant's witness, Dr. Amyx, to testify in regard to a conversation between himself and respondent on the day of the accident when, in the presence of several witnesses, including appellant's treasurer, the respondent stated how the accident happened. (a) Because the particular communication sought to be elicited from this witness was not one that was made by the patient in order to enable the physician to properly treat him. Wigmore on...
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