Plate v. Ludlow-Saylor Wire Co.

• Decision Date: 08 February 1921
• Docket Number: No. 16319.,16319.
• Citation: 227 S.W. 899
• Parties: PLATE v. LUDLOW-SAYLOR WIRE CO.
• Court: Missouri Court of Appeals

227 S.W. 899

PLATE v. LUDLOW-SAYLOR WIRE CO.

No. 16319.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Rehearing Denied February 24, 1921.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

"Not to be officially published."

Action by Albert J. Plate, an infant, by Edmond Plate, his next friend, against the Ludlow-Saylor Wire Company. From judgment for plaintiff, defendant appeals. Affirmed.

Anderson, Gilbert & Hayden, of St. Louis, for appellant.

C. W. Rutledge, of St. Louis, for respondent.

BECKER, J.

This is a suit for damages for personal injuries alleged to have been sustained by plaintiff at the time when he was 14 years and 5 months old, while in the employ of the defendant. From judgment in favor of plaintiff in the sum of $2,000, defendant appeals.

The record discloses that in July, 1917, when the plaintiff was 14 years and 5 months of age, he obtained employment with the defendant, and after being in their employ a few days he was directed to remove scrap wire, which was in barrels, from the third floor of defendant's factory, and to take the wire to the first floor. In order to do that work it was necessary for plaintiff to use a freight elevator located on the premises. He was taken to the elevator by the superintendent, who asked him if he knew how to run it, and he stated that he did not but that he could learn. The superintendent instructed him how to operate the elevator, showing him how to pull the rope to start it and stop it, and how to manipulate a certain device on the elevator for locking the steel rope or cable used for starting and stopping the elevator. This locking device enabled the elevator to be held in place at any floor so that the elevator could not be raised or lowered by any one on the other floors in the building until this locking device was released.

To lock or unlock the elevator by means of this device, it was merely necessary to move a small ring attached to the cable. When the ring was moved toward the cable it locked the elevator, and, if moved away from the cable, it unlocked it.

Plaintiff was shown how to lock and unlock the device, and according to plaintiff's testimony the superintendent told him to lock the elevator if he got off the elevator at any floor, and that, if a certain horn was sounded, it would indicate that some one on another floor desired to use the elevator, and he should then unlock it; that for the purpose of unlocking the elevator there was an opening in the upper left-hand corner of the safety gate, this opening being made so as to permit any one to put his hand and arm through it to reach the locking device, thereby enabling him to lock or unlock the elevator.

Just prior to the time plaintiff received his injuries he had ascended in the elevator from the first floor to the third floor and had had some difficulty in stopping the elevator so that the floor thereof was exactly level with the third floor of the building. After making several endeavors to have the elevator floor flush with that of the building floor, he stopped the elevator about 6 inches below the floor of the building, rolled the barrel, which, according to plaintiff, was on a truck, off of the elevator, having put on the lock prior to his leaving same. When he had gotten to a point some 30 or 40 feet from the elevator shaft on the third floor he heard the horn sounded whereupon he immediately returned to the elevator shaft. Arriving at the gate, plaintiff testified that he reached through the opening in the gate with his hand to unlock the elevator and found that he was unable to reach the locking device because of the fact that the floor of the elevator was 6 inches below the floor of the building. Thereupon he put his head through this opening, and in that way was enabled to reach the locking device. He moved the ring which unlocked the elevator, whereupon the elevator started to descend, and as the roof of the elevator reached the opening of the gate it caught respondent's head and severely injured him.

It appears that the elevator had a wire roof and that the roof was approximately 8 feet above the floor of the elevator. On cross-examination, in answer to the question as to whether he knew, "when that elevator came down that the roof had to pass right by there where you had your head, and that, if you didn't get your head out of that, the roof would strike it," plaintiff said, "Yes, sir." Yet on redirect examination he testified:

"I didn't know at the time I was hurt, or before that, that if I didn't get my head out of there the elevator would strike me; I mean I know it now. I didn't know at the time where the roof of the elevator was from the floor. * * * I didn't know at the time I was hurt, or before I was hurt, that I was running any risk by sticking my head in this opening in the gate." "When I unlocked it, the elevator went down as soon as I unlocked that lock and before I could get my head out of it."

In the course of plaintiff's testimony we find the following questions and answers:

"Now, why did you put you head into this opening, Albert. A. Because I wanted—because I couldn't reach the hook, my arm was not long enough to reach. Q. Didn't you know the distance between this gate and the roof? A. No, sir. Q. Did Mr. Davis tell you, or any one else at any time tell you, not to put your head through that opening? A. No, sir."

Plaintiff's petition sets out seven separate assignments of negligence. In view of the instructions we need note but one of these assignments, namely, that at the times mentioned in the petition there was in force in the city of St. Louis ordinance numbered 29466, approved February 15, 1917, section 14 of which is as follows:

"The users of all power elevators shall employ competent persons to operate same, who shall have a proper knowledge of all the parts of the machinery for the working of the elevators in their charge. No person under the age of sixteen years shall be permitted to operate a power elevator."

The defendant's answer was merely a general denial.

The court submitted the case to the jury on the assignment of negligence in plaintiff's petition as to the violation of the said ordinance therein pleaded, and at the request of plaintiff submitted two instructions, one predicated upon the theory that defendant failed to employ a competent person over the age of 18 years available either on the elevator or on different floors to persons desiring to use same, such person being especially charged with the duty of operating such elevator. The other instruction hypothesized the recovery as for negligence of the defendant with regard to allowing a person under the age of 16 years to operate a power elevator. In each of these instructions the jury, in order to find for plaintiff, was required to find that plaintiff's injuries were directly due to the failure on the part of the defendant to comply with the said ordinance as to the things in each of said instructions hypothesized, and in addition that plaintiff was at such time using the ordinary care that a reasonably prudent boy of his age, experience, intelligence, and ability would use.

I. It is seriously...