Purcell v. Tennant Shoe Co.

• Decision Date: 15 March 1905
• Parties: PURCELL v. TENNANT SHOE CO.
• Court: Missouri Supreme Court

86 S.W. 121

187 Mo. 276

PURCELL v. TENNANT SHOE CO.

Supreme Court of Missouri, Division No. 1.

March 15, 1905.

MASTER AND SERVANT—INJURIES TO SERVANT— NEGLIGENCE—EVIDENCE—BURDEN OF PROOF.

1. It is the duty of a master to furnish the servant with a reasonably safe place to work.

2. The shaft of defendant's elevator was surrounded on each floor with a fence or railing having a gate that ran up and down on weights, and while a servant was sweeping the false floor over the shaft, the gate having been left open, the elevator ascended, and, the false floor moving upwards, prongs that extended from the sides of the false floor a few inches, and which were necessary to the operation of the false floor, caught plaintiff and injured him. Held that, the elevator being in good condition, it not appearing what caused it to start, and it not being shown how long the gate had been raised, or that defendant knew or could have known that it was raised, and there being no negligence in the arrangement of the prongs or the character of the gate, no liability on the part of the master was shown.

3. In an action by a servant for injuries the burden of proof is on him to show that the accident was from a cause for which the master is liable.

4. A city ordinance requiring users of all power elevators to employ a competent person to run them does not mean that only one person shall be permitted to run an elevator, and that he shall not perform any other service.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Thomas P. Purcell against the Tennant Shoe Company. From a judgment for defendant, plaintiff appeals. Affirmed.

H. Chouteau Dyer, for appellant. Seddon & Holland, for respondent.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries received by the plaintiff on April 23, 1900, while in the discharge of his duty as a servant of the defendant. At the close of the plaintiff's case the trial court sustained a demurrer to the evidence. The plaintiff stood on the ruling, a verdict was rendered for the defendant, and the plaintiff appealed.

The petition alleges that the defendant corporation occupies and does business in a five-story building numbered 823 and 825 Washington avenue, in St. Louis, in which it maintains and operates a freight elevator operated by hydraulic power, and which is started or stopped by a rope or cable fastened to a valve in the cellar and extending up the elevator shaft; that the elevator shaft has a lattice guard or railing around it on each floor, with a gate thereto, which lifts up, and works like a window on weights, remaining at the height to which it is raised; that the plaintiff was an employé of the defendant as porter or minor clerk, and it was his duty to sort shoe samples, run errands, and sweep the floors, including the false floors over the elevator shaft on the several floors. The specific negligence of the defendant charged is: First. That the elevator was defectively and dangerously constructed and operated, in this: that the gates did not close automatically, but would remain in the position to which they were raised; and that defendant habitually and commonly permitted the gates to remain open and the shaft unguarded when the elevator was not on the level with the floor; and that there were strong iron hooks or plates attached to and projecting outwardly two inches from the floor of the elevator, which passed through narrow grooves cut in the several floors, so that when the gates were open, and the elevator passed by the open gate, there was no guard to protect persons standing on the floor of the building and near such opening from being caught by such projecting hooks or plates and being carried upward against the bottom of the open gate. Second. That the defendant permitted any person in the building to run the elevator, and without any warning that it was to be moved. Third. That there is an ordinance of the city of St. Louis that requires users of all power elevators to employ a competent person, aged not less than 16 years, to run them; and that defendant failed to employ such a competent person to run its elevator, but permitted divers of its employés, who were unskilled in running elevators, to run the same. The petition then alleges that while plaintiff was in the discharge of his duty, and was sweeping the false floor or covering over the elevator shaft on the second floor of the building, and while the gate thereto was raised and open, the defendant caused the elevator to start upward at a high rate of speed, whereby plaintiff's leg was caught by one of said hooks or plates, and he was carried upward six or eight feet, and his head struck against the bottom of the gate, inflicting great injury upon him. The answer is a general denial, a plea of contributory negligence, and a plea of assumption of risk.

The case made by the plaintiff is this: The plaintiff was 19 years of age, and had been in the employ of the defendant as a porter or minor clerk for about 10 days. His duties chiefly were to help to load and unload the freight elevator, and to sweep the building, including the covers on the elevator shaft. The defendant used the whole of the five-story building. There were two elevators in the building, a passenger elevator and a freight elevator. Around the elevator shaft on each floor there was a fence or railing, with a gate which worked on weights so as to be lifted like a window. The freight elevator was run by hydraulic power, and was equipped with appliances for covering the shaft at each floor to prevent accidents. These appliances consisted of false floors, which were connected with the elevator and worked automatically. Thus there were six such false floors above the top of the elevator and six below the bottom of the elevator. Those below the elevator worked on a system of ropes and weights, so that when the elevator was at the bottom of the shaft, they were all pressed down below the bottom of the elevator. As the elevator went on up these would rise with the elevator, the lowest one to the height of the first floor only, where it would stop automatically and cover the opening of the shaft like a prolongation of the floor of the building; the next would rise to the height of the second floor and cover the opening in the shaft there; and so on to the top—the purpose being that the opening to the shaft should be covered while the elevator was up. Those above the elevator worked thus: When the elevator was at the bottom, one of such false floors would cover the opening of the shaft at each floor. When the elevator went up, the top of the elevator would carry the false floor at the second floor on up with it, and so at each floor, and when the elevator got to the fifth floor all of the false covers that covered the opening of the shaft when the elevator started up would be at the top of the elevator, having been thus carried up by the elevator as it rose. As the elevator went down the topmost of these covers would stop automatically at the fifth floor, and cover the shaft opening there, and so on, successively at each floor, so that when the elevator reached the bottom, each floor would have a covering over the shaft opening. To prevent the false floor at the top from coming all the way down, and to cause one to stop at the proper floor, they had iron prongs that extended out about two inches from the bottom of the false floor, and which prongs fitted into narrow grooves in the floor, thereby causing the top of the cover to be on a level with the floor. (The petition erroneously charged that these iron prongs extended out from the floor of the elevator, but the evidence shows they were attached to the floors of the false floors aforesaid.) On the day of the accident the plaintiff was sweeping the second floor. In order to sweep the false floor or...