Reel v. Consolidated Inv. Co.
| Decision Date | 19 December 1921 |
| Docket Number | 22056 |
| Citation | 236 S.W. 43 |
| Parties | REEL v. CONSOLIDATED INV. CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Karl Kimmel, Judge. Action by William Reel against the Consolidated Investment Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Holland Rutledge & Lashly, of St. Louis, for appellant.
Smith & Pearcy, of St. Louis, for respondent.
RAGLAND C., SMALL, C., concurs. BROWN, C., absent. PER CURIAM. The foregoing opinion of RAGLAND, C., is adopted as the opinion of the court. GRAVES and WOODSON, JJ., concur. JAMES T BLAIR, J., concurs in result. ELDER, J., dissents.
Suit to recover damages, both compensatory and punitive, for personal injuries, alleged to have been caused by negligence.
Defendant was the owner of a 10-story building on Ninth and: between Locust and Olive streets in the city of St. Louis. A part of the basement of the building was leased to the McTague Catering Company, and it conducted a restaurant therein. The defendant maintained and operated for the use of its lessee a freight elevator or hoist. It ran from the bottom of the basement up to the level of an areaway, which opened on an alley. All of the supplies used by the restaurant were delivered by way of this elevator, and all heavy or bulky articles to be removed from the premises were carried up on it. It was customary and usual for the persons engaged in making such deliveries or removals to ride up and down on the elevator, as that provided the only communication between the basement and the alley. The elevator was operated by means of levers, which were located in the basement near the pit to which it descended. Persons riding on the elevator had no means of controlling its movements.
On April 18, 1918, the lease of the McTague Catering Company having expired, or being about to terminate, it was engaged in moving its furniture and equipment from defendant's building. Plaintiff, an employe' of the former, and a coemploy' loaded five or six bar mats on the elevator heretofore described, and got on it with them to be lifted to the alley. The elevator ascended in the usual way. When it had reached the alley level and came to a stop, plaintiff passed one of the mats to the driver of a wagon stationed there to be loaded. Just as he had done so there was a cracking noise, and the elevator with the two men and the remaining mats instantly fell to the bottom of the basement.
From the fall plaintiff sustained the following injuries: Both bones of the left leg below the knee were fractured; one or both of them had pieces of bone broken entirely off of the shaft, and a piece of one of the bones protruded through the flesh; the small bones of the left ankle and foot were dislocated, some of them fractured; the lower end of the fibula in the right leg was fractured; and the bones of the right ankle were dislocated. For some reason plaintiff lay on the floor of the basement for an hour before he was removed to the hospital. During that time he suffered intense pain. On being received at the hospital the fractures and dislocations were promptly reduced. Through the flesh wound in the left leg some infection was introduced, but this was removed by treatment, and at the end of two weeks the leg was put in a cast. All of the bones united in perfect apposition. With the exception of his feet and ankles, plaintiff's legs became as strong as ever, and functioned normally. At the time of the trial, October 28, 1919, there was swelling of both his lower legs, feet, and ankles; the ankles were stiff, and the arches of his feet were partially lowered. The stiffness of the ankles was caused by adhesions and not dislocations. The loss of mobility, flexion, in the left ankle was 70 per cent., in the right ankle, 20 per. cent. The stiffness of the ankles did not prevent him from walking around freely, but it made him liable to trip and fall over slight obstructions. The lowered arches of his feet caused pain in walking or continued standing. This condition was but partially relieved by the use of arch supports. He was unable to walk more than two blocks, without the aid of a crutch or cane, on account of the pain that would set up in his ankles. The stiffness of the ankles and the condition of the arches are permanent; the swelling may yield to treatment Plaintiff was in the hospital from April 18th to the 1st of July following; he was confined to his bed for a month after that; he has suffered great pain; and during the remainder of his life he will experience pain to some extent on account of the lowered arches of his feet. The foregoing statement of plaintiff's injuries and resulting physical condition, at the time of the trial, Is an abridgment of his and his physician's testimony.
Plaintiff was 48 years old; by vocation he was a steward and chef; and he had been In the employ of the McTague Catering Company as steward for 17 years. At the time of his injury he was receiving $ 32.50 a week. On the 16th day of September following his injury he resumed his work at the same weekly wage. On the 1st of November following, his wages were increased to $ 37.50 per week. At the time of the trial he was still in the employ of the McTague Catering Company as steward, and had not lost a day since returning to work. He incurred obligations for medical attention to the extent of $ 750.
The elevator was caused to fall by the breaking of the two wire cables, through the medium of which it was raised and lowered. The capacity of the elevator was 1,000 pounds. Each cable was a half inch in diameter, and was made up of six strands of 19 wires each. On or about December 5, 1917, one Neupert, who described himself as an elevator inspector in the employ of the city of St. Louis, inspected the elevator. He testified that on that occasion he found that six or seven wires in one of the strands of one cable were broken; that these broken wires reduced the strength of the cable 20 per cent.; and that he pointed out the broken wires to Reed, defendant's engineer in charge of the building, who was present when the inspection was made. The ordinance of the city of St. Louis, if any, relating to the inspection and licensing of elevators, was not introduced in evidence, but on December 5th immediately following Neupert's inspection, defendant received a document purporting to have been issued by the Division of Building and Inspection of the Department of Public Safety of the City of St. Louis, and signed by Neupert as "Deputy Inspector." In this paper there was a statement to the effect that from an inspection it was found necessary, in order to place the elevator in question in a safe and secure condition, that one of the hoisting cables be renewed. It concluded with a recommendation that the renewal be made immediately.
The cable was not renewed, and on March 4, 1918, Neupert again inspected the elevator in the presence of Reed. At that time Neupert found, according to his testimony, that all the strands of both cables had "opened up," and that there were strained and broken wires in all of them where the cables ran over the sheaves. He thereupon told Reed to put two new cables on just as soon as he could, and Reed promised that he would do so that same afternoon. On the same day defendant's manager received a second notice, purporting to emanate from the same source as the first. In this It was stated that an Inspection showed that the condition of the elevator was dangerous, and that a city certificate would not be issued until both cables were renewed. The manager handed the notice to the building superintendent, who in turn passed it on to Reed, the engineer, with the direction, he says, to give it attention. The cables were not replaced, but were continued in use until they broke, at the time and under the circumstances heretofore detailed.
Plaintiff called as a witness defendant's employe' who operated the elevator, and who was present and looked at the cables during both of Neupert's inspections. He testified that the cables were cut and worn a third of the way. On cross-examination he was asked:
For the defendant, its engineer, Reed, who had charge of all the elevators in its building and under whose supervision they were operated, testified that he was present when Neupert made both inspections of the elevator in question, and went over the cables with him; that in December Neupert pointed out some bad spots in one of the cables, and told him it would bear watching; that thereafter until the day of the accident he examined the cables daily to see whether there was any immediate danger of them giving away, and discovered none; that on March 4th both were still in fairly good condition, there being a wire broken here and there, probably as many as five or six to the strand all told; and that it was his judgment as an engineer at that time that the cables could still be used with reasonable safety for a period of from 9 to 12 months. He further testified that, as the break in the both cables was straight across, it was his opinion that It had been caused by "jamming" the elevator--that is, by putting the power on, or continuing it after the movement of the elevator had been impeded by some extraneous object, causing additional...
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