Orcutt v. Century Bldg. Co.

• Decision Date: 03 July 1908
• Citation: 112 S.W. 532,214 Mo. 35
• Parties: ORCUTT v. CENTURY BLDG. CO. et al.
• Court: Missouri Supreme Court

112 S.W. 532

214 Mo. 35

ORCUTT v. CENTURY BLDG. CO. et al.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

Rehearing Denied July 14, 1908.

1. CARRIERS—CARRIAGE OF PASSENGERS—ELEVATORS—PERSONAL INJURIES—SUBMISSION TO JURY.

In an action for injuries through the falling of an elevator, evidence tending to prove that defendants were operating the elevator, and were common carriers of passengers; that plaintiff was a passenger on the elevator, together with proof of the accident and attending circumstances and plaintiff's injuries—was sufficient to make out a prima facie case, entitling plaintiff to go to the jury.

2. APPEAL AND ERROR—HARMLESS ERROR—INSTRUCTIONS.

Where, in an action for injuries, only general negligence was required to be charged, but plaintiff alleged specific acts of negligence, defendant could not complain of instructions shifting the burden of proof from defendant to plaintiff, by requiring him to prove the facts stated in the instructions; plaintiff being entitled, under the law, to recover without requiring the jury to find any of the facts stated in the instructions to be true.

3. TRIAL — INSTRUCTIONS—CONSTRUCTION TOGETHER.

Where all the instructions when read together cover the entire case as made by the pleadings, and require the jury to find all the facts essential to a recovery, they are not open to the objection that each of them undertakes to cover the entire case, but erroneously omits some essential fact necessary for the jury to find to justify a verdict.

4. SAME—ASSUMING FACTS.

An instruction assuming as true a fact proven by the uncontroverted evidence was not erroneous.

5. CARRIERS—CARRIAGE OF PASSENGERS—ELEVATORS — PERSONAL INJURIES — BURDEN OF PROOF—INSTRUCTIONS.

Where, in an action for injuries to a passenger in an elevator through the falling thereof, plaintiff was entitled to go to the jury on the presumption of negligence, an instruction that the burden of proving the specific facts causing the injury rested throughout the case on plaintiff was properly refused.

6. SAME—EVIDENCE.

In an action for injuries to a passenger in an elevator, through the falling thereof, evidence relating to the condition of the elevator as far back as two years prior to the injury and on down to within a few days thereof, and tending to show that the elevator would not run properly, that the cable was rusty and rotten, that bolts were loose, that the guide shoes were constantly getting out of place, and that the rod governing the safety appliances was so bent they would not properly perform their functions, was admissible.

7. APPEAL AND ERROR—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Where, in an action for injuries to a passenger in an elevator, through the falling thereof, evidence that the guide shoes got out of position, and that the safety dogs would not work properly, was admissible; the error, if any, in permitting a witness to testify that he had reported to defendant's engineer about the shoes getting out of position, and that the dogs would not work, was harmless.

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

Action by Robert Lee Orcutt against the Century Building Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

See 201 Mo. 424, 99 S. W. 1062, 8 L. R. A. (N. S.) 929.

Plaintiff instituted this suit to recover damages for personal injuries, sustained by him through the alleged negligence of the defendants in permitting a freight elevator, in which he was riding, to fall. There was a trial before the court and jury, which resulted in a verdict and judgment for plaintiff, and against both defendants, for the sum of $13,150. After taking the proper preliminary steps, the defendants appealed the cause to this court.

The petition upon which the trial was had, in substance, alleged: That the Century Building, in the city of St. Louis, was owned by defendant Century Building Company on and prior to May 30, 1902, and that defendant Mississippi Valley Trust Company, for some time prior thereto was, and still is, the trustee in two deeds of trust, the first to secure bonds amounting to $600,000, and the second to secure bonds amounting to $150,000; that by a written contract, dated December, 1896, defendant Mississippi Valley Trust Company was, by defendant Century Building Company, appointed its attorney in fact to rent said Century Building, and in its name to collect rents, and out of the rents so collected to pay all taxes and ground rent, semiannual interest on bonds, and all expenses connected with the maintenance and repair of the building, and also to pay itself 3½ per cent. commission on the amount collected; that on the 30th day of May, 1902, the Mississippi Valley Trust Company was in the control and management of said building under said contract; that on and prior to said date it was customary for persons taking freight out of said building, or taking it into said building, to place the freight on a certain freight elevator, and also to ride with the freight on said elevator; that such persons were invariably allowed by defendant to use said elevator; that on said date, when plaintiff was on said elevator in said capacity, and was a passenger thereon, the elevator fell from the seventh floor to the basement, causing serious injuries to plaintiff; that the fall of said elevator was the result of negligence on the part of defendants. The answer was a general denial.

There was but little, if any, material conflict in the testimony of the witnesses for plaintiff and defendants. The plaintiff's evidence tended to prove that the Century Building Company, a corporation of Missouri, was, and at all times mentioned in the evidence continued to be, the owner of the Century Building at the northwest corner of Olive and Ninth streets, in the city of St. Louis, and that the building was opened for occupancy about February, 1897; and from the beginning a certain steam freight elevator was operated in said building, on the west side of same, opening on an alley, which formed the western boundary of the building; the elevator being located nearer to Olive than to Locust street. On January ___, 1896, the Century Building Company executed a deed of trust, conveying to defendant Mississippi Valley Trust Company, as trustee, the Century Building, and all the assets of the company, to secure an issue of bonds amounting to $600,000. On October 1, 1897, the Century Building Company executed to defendant Mississippi Valley Trust Company, as trustee, a second deed of trust upon the Century Building, and all other assets of the company, to secure the payment of an issue of bonds in the sum of $150,000. On December 10, 1896, the Century Building Company and the Mississippi Valley Trust Company entered into a contract of agency, whereby the Century Building Company appointed the Mississippi Valley Trust Company irrevocably its agent and attorney in fact: To rent, for the Century Building Company and in its name, the Century Building, and each and every part thereof; to collect all rents accruing to the Century Building Company from any portion of said building; and to make out of same the following payments and disbursements: First. To pay all taxes of every kind and character on said building or the ground upon which same is situated. Second. To pay the ground rent. Third. To pay the semiannual interest on said bonds. Fourth. To pay all expenses with the maintenance, repairs, and management of said building and operating expenses thereof. Fifth. To pay all insurance, covenanted by the Century Building Company in said deed of trust, to be taken out on said premises. Sixth. To pay over the balance of said rents to the Century Building Company, after deducting from the rents as collected, as compensation, to said Mississippi Valley Trust Company, for its service as attorney in fact and agent, the sum of 3½ per cent. on the amount collected in said rents of said building and property. It was further provided, in and by said contract of agency, that while the said matters were set out as "first," "second," etc., it was not intended thereby that the said Mississippi Valley Trust Company should be obliged to pay on account of said items in the order named; but, on the contrary, the said trust company was expressly given authority and right to use its discretion in the premises. It was further provided that the terms and conditions of the renting of the property, or any part thereof, and also the amount to be expended for maintenance, repairs, management, and operating the building, should be at the discretion of said Mississippi Valley Trust Company. The agreement of agency and attorney in fact was made irrevocable, and required to continue during the life of the bonds under the said deed of trust. And the Mississippi Valley Trust Company accepted said appointment as attorney in fact and agent, and agreed faithfully to perform its duties with respect to same. The said agreement of agency and appointment of attorney in fact was duly executed by the Century Building Company.

The Mississippi Valley Trust Company entered upon the execution of its contract of agency, and employed the McCormick, Kilgen & Rule Real Estate Company as agents, to look after renting the offices in the building. The McCormick, Kilgen & Rule Real Estate Company collected the rents, and looked after the repairs. The Mississippi Valley Trust Company had full charge and control of the Century Building and its elevators and employés in charge thereof. From the opening of the building in 1897 passengers were carried in the freight elevator in the Century Building. It was customary for the operator to carry passengers up and down on the freight elevator down to the 30th of May, 1902. Plaintiff himself had frequently been carried on this same elevator. Badwin, employed at McTague's restaurant, during a period of five years before the fall of this elevator, frequently saw...