Orcutt v. Century Bldg. Co.

• Decision Date: 22 December 1906
• Citation: Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062 (Mo. 1906)
• Parties: ORCUTT v. CENTURY BLDG. CO. et al.
• Court: Missouri Supreme Court

99 S.W. 1062

201 Mo. 424

ORCUTT v. CENTURY BLDG. CO. et al.

Supreme Court of Missouri, Division No. 1.

December 22, 1906.

1. CARRIERS—CARRIAGE OF PASSENGERS—WHO ARE CARRIERS.

Where one engaged in moving the effects of a tenant from a building was, according to custom, riding on a freight elevator, the relation of passenger and carrier existed between him and the owner of the building, who was liable for injuries sustained by such person through the negligence of the operatives of the elevator.

2. SAME — ISSUES AND PROOF — BURDEN OF PROOF.

Where, in an action against a carrier for injuries to a passenger, the petition alleges specific acts of negligence, plaintiff has the burden of proving such acts, and must recover, if at all, on the negligence so pleaded.

3. SAME—INSTRUCTIONS.

In an action against the owner of a building for injuries to one riding, according to custom, on a freight elevator while engaged in moving the effects of a tenant, plaintiff requested an instruction that due care, as used in the instructions meant care commensurate with the means being used and the danger to be apprehended, and that defendant was bound to use that high degree of care which prudent and

competent men would exercise under like circumstances. Held, that the refusal of the instruction was error, notwithstanding that plaintiff's petition had alleged specific acts of negligence, placing the burden upon him to prove such acts, since, irrespective of where the burden of proof lay, the measure of care was the same.

4. PRINCIPAL AND AGENT — NEGLIGENCE OF AGENT—INDIVIDUAL LIABILITY OF AGENT.

The owner of a building executed a deed of trust thereon to secure bonds issued by the owner, and the trustee was made an attorney in fact, irrevocable to rent the building, collect rents, pay taxes, and all expenses connected with the management of the building, and the trustee was to retain a certain per cent. of the moneys collected in payment of such services. The trustee assumed management of the building employed all servants connected with the building and paid them their wages. Held, that the trustee was liable, as for a misfeasance, for injuries to one riding on an elevator in the building owing to negligence in the maintenance and repair of the elevator, or the negligence of the operator.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Robert Lee Orcutt against the Century Building Company and others. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.

John A. Gilliam and Luther Ely Smith, for appellant. Seddon & Holland and Collins & Chappell, for respondents.

GRAVES, J.

By suit instituted in the circuit court of the city of St. Louis, the plaintiff sought to recover of defendants, for personal injuries, medical attendance, medicines, medical appliances, and nursing, the sum of $50,000. In a trial before a jury, verdict was for the defendants, and plaintiff appealed.

The petition, which is lengthy, in substance charges: That the defendant Century Building Company, a corporation, built and owns the Century building, a large office building in the city of St. Louis; that the defendant Mississippi Valley Trust Company, a corporation, is and was the trustee in two certain deeds of trust on said building given to secure bonds of said Century Building Company in the aggregate of $750,000; that said Mississippi Valley Trust Company, by a certain written instrument of date December 18, 1896, was made attorney in fact irrevocable to rent said Century building and to collect rents, pay taxes, pay ground rent, pay the interest on said bonds, and to pay all expenses connected with the maintenance, repair, and management of said building, as well as the insurance thereon, and was to retain 3½ per cent. of all moneys collected, in payment of its services in this behalf; that the terms of renting and the amount to be expended upon repairs, maintenance, and management, were by said contract left to the discretion of said Mississippi Valley Trust Company; that after the date of said contract, and to the date of the injury to the plaintiff, said Mississippi Valley Trust Company exercised all the powers given it by said contract as to said building; that by reason of the premises the said trust company became, and was jointly liable, with the Century Building Company, for plaintiff's damages. The petition then further charges that defendants, in conducting said building as an office building, used a large freight elevator to haul up and down the freight, property, and effects of their tenants, and permitted and invited persons to attend to said property and to ride up and down upon said elevator in so doing, and had constantly carried attendants with freight, and had extended a general invitation to persons in charge of freight to ride upon said elevator; that on May 30, 1902, this plaintiff was engaged in moving the effects of the St. Louis & San Francisco Railroad Company, from the Century building to another place; that the plaintiff was aware of the general custom of defendants to permit attendants of freight to ride in said freight elevator, and had knowledge of the general invitation which defendants extended to attendants of freight and accepted said invitation and on said date was rightfully on said elevator, and that it thereby became the duty of defendants to use due care to carry plaintiff in said elevator safely. The negligence charged as to said elevator and its operation may be summarized as follows: (1) Negligently and carelessly constructed. (2) Negligently and carelessly allowed to be and remain out of repair. (3) Negligently exposed to injuries from foreign bodies. (4) Negligently operated. (5) Negligently failed to inspect said elevator and its machinery. (6) Negligently failed to have in their employ skilled and competent operators. (7) Negligently failed to have same inspected by city inspectors as required by city ordinances. Specifically the petition says: "And on the morning of May 30, 1902, while plaintiff was under invitation from defendants rightfully and lawfully upon said elevator in charge of said property of said railroad company, the operator of said car negligently conducted the car thus loaded from the seventh floor up to the eighth floor of said building, and then and there suddenly, violently, and negligently reversed said car, subjecting the operating machinery and the pinion of the engine and the gearing, and the cables and winding-drum, and pillow blocks, caps, bolts, and screws to great and extraordinary strain, and said elevator, by reason of said negligent and violent reversing of said car by said operator, and the negligent and improper construction of said elevator, and by reason of the negligence of the defendants in failing to provide suitable machinery for raising and lowering the same, and failing to keep said machinery and appliances in good repair, and failing to provide against the exposure of said machinery to breakage and injury from outside substances, and the negligence and incompetence of defendants' servants in managing same, and the failure of defendants to have said elevator and machinery properly inspected, protected, and managed, gave way, said pinion, winding-drum and gearing, rack, pillow blocks, caps, bolts and screws broke, and said cables broke and said winding-drum and shafting jumped from its position, and said elevator fell, and said counterweights smashed and the pieces fell down the shaft and upon the car below, and on the load and on plaintiff, and the said elevator fell from about the seventh floor to the basement of said building, and the so-called safety devices, by reason of defendants' negligence aforesaid, failed to work properly, and said dogs did not grip the guides and stop the car, and said operator of said elevator negligently, carelessly, and thoughtlessly did not reverse said car when he found the same was getting beyond his control, but increased the speed of said car by pulling the cable by which the direction of the car was regulated up or down, in a manner to make it go down instead of up." Then follows a description of plaintiff's injuries, which are and were very serious in character, together with the allegation of his earning capacity being $125 per month, the loss of time in sum of $575, and the permanent impairment of earning capacity. Each defendant answered by way of general denial. Errors in the admission and exclusion of testimony, and the giving, refusing, and modification of instructions are assigned, which will be noticed in the course of the opinion.

1. The first question which should be determined is the relationship of plaintiff to these defendants, or either of them. That is to say we should first determine whether the plaintiff was a passenger or a mere licensee, for the obvious reason, that the determination of this question will assist to determine many other questions involved in this record. Plaintiff contends that he occupied the relation of passenger, while defendants say he was a mere licensee. The evidence shows that there were six passenger elevators and one freight elevator in the building; that passengers generally used the passenger elevators, and all the workmen with plaintiff upon this occasion used the passenger elevators. There is much evidence to the effect that for at least three or four years prior to this accident, plaintiff and others in charge of freight were permitted to and did ride in this freight elevator. And to the further effect that it was the custom of persons handling freight to go up and down this elevator. Does this make plaintiff a passenger? In the running of passenger elevators, it has been held in well-considered cases that the relation of passenger and carrier exists. Goldsmith v. Holland Bldg. Co., 182 Mo. 597, 81 S. W. 1112; Becker v. Lincoln Real Estate & Bldg. Co., 174 Mo. 246, 73 S. W. 581; Luckel v. Century Bldg. Co., 177 Mo....