Obermeyer v. Logeman Chair Mfg. Company
| Decision Date | 14 June 1910 |
| Citation | 129 S.W. 209,229 Mo. 97 |
| Parties | JOHN OBERMEYER, by His Next Friend, v. LOGEMAN CHAIR MANUFACTURING COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
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 of 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; Spiva v. Osage C. & M. Co., 131 Mo. 241; Nugent v. Milling Co., 131 Mo. 241; Lucey v. Oil Co., 129 Mo. 32; Fugler v. Bothe, 117 Mo. 475; Steinhauser v. Spraul, 127 Mo. 541; Epperson v. Postal, 155 Mo. 346; Roberts v. Telephone Co., 66 S.W. 157; Matthias v. Kansas City, 84 S.W. 66; Railroad v. McBride, 135 U.S. 554; Railroad 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 1 at the instance of respondent, because there is no evidence upon which to base portions of it. Stone v. Hunt, 114 Mo. 66; State v. Hope, 102 Mo. 410; Evans v. Interstate Co., 106 Mo. 59; State v. Brown, 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 345. (3) 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) 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 Ev., par. 2383. (b) It was not privileged because it was made by the respondent to his physician in the presence of several witnesses, one of them being the treasurer of appellant company. Deuser v. Walkup, 43 Mo.App. 625; Scherstein v. Scherstein, 68 Mo. 235; Long v. Martin, 152 Mo. 668, 71 Mo.App. 569; 23 Am. and Eng. Ency. Law, p. 96; Wigmore on Ev., par. 2311; Sharron v. Sharron, 79 Cal. 635; Goddard v. Gardner, 28 Conn. 172; Hartford Co. v. Reynolds, 36 Mich. 502; House v. House, 61 Mich. 69; People v. Buchanan, 145 N.Y. 1; Hummell v. Kistner, 182 Pa. St. 216.
Walther & Muench and A. R. Taylor for respondent.
(1) This cause is before this court upon a certificate of division of the judges of the St. Louis Court of Appeals, from an affirmance of the judgment by a majority of that court, Mr. Justice Nortoni dissenting on the sole ground that respondent assumed the risk arising from a defective condition or construction of the elevator shaft in question. This was the sole ground of the dissent as appears from dissenting opinion, 120 Mo.App. 78. (2) The doctrine on which the dissenting opinion is predicated, to-wit: that a servant, by remaining in the service with knowledge of a defective condition of an appliance used, thereby assumes the risk arising from such defects, is entirely overthrown in this State by what now is a settled rule of decision. The rule as finally settled is this: that the servant never assumes and can never assume the risk that arises from the negligence of the master in failing to perform his contractual duty for his servant's safety. This court has steadily adhered to this vital principle of the relation of master and servant in its rulings, beginning as early as the case of Blanton v. Dold, 109 Mo. 76, and followed in Settle v. Railroad, 127 Mo. 343. Pauck v. Beef Co., 159 Mo. 477; Carter v. McNair, 173 Mo. 280; Cole v. Railroad, 183 Mo. 90; Bulz v. Murch Bros., 199 Mo. 286; Charlton v. Railroad, 200 Mo. 433; George v. Railroad, 225 Mo. 364. (3) If assumption of risk of the master's negligence cannot obtain as to an adult sui juris, how can it prevail against this minor who cannot have a contract enforced against him if he had made such contract?
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 $ 3000. 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, 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 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 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:
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 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 floor; 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...
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