Roberts v. Schaper Stores Co.

• Decision Date: 18 February 1928
• Docket Number: 26297
• Citation: 3 S.W.2d 241,318 Mo. 1190
• Parties: Katherine Roberts v. Schaper Stores Company, Appellant
• Court: Missouri Supreme Court

3 S.W.2d 241

318 Mo. 1190

Katherine Roberts v. Schaper Stores Company, Appellant

No. 26297

Supreme Court of Missouri

February 18, 1928

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Taylor Chasnoff & Willson, John T. Sluggett, Jr., and James V. Frank for appellant.

(1) The court erred in refusing to sustain appellant's demurrers to the evidence at the close of respondent's case, and at the close of the whole case. (a) The amended petition pleaded specific negligence, which qualified, enlarged and explained the allegation that the elevator moved. Porter v Railway, L. H. & P. Co., 277 S.W. 915; Thompson v. Livery Co., 214 Mo. 487; McManamee v. Mo. Pac. Ry. Co., 135 Mo. 440. (b) There is a total failure of proof. Respondent alleged in her petition that she was caused to fall by the descent of the elevator, whereas the proof showed that respondent was caused to fall by the ascent of the elevator. Chitty v. Railway Co., 148 Mo. 64; Gurley v. Railway Co., 93 Mo. 450; Beave v. Transit Co., 212 Mo. 331; McGrath v. Transit Co., 197 Mo. 97; Bonnarens v. Lead Belt Ry. Co., 273 S.W. 1047; Zasemowich v. Am. Mfg. Co., 213 S.W. 802; Waldhier v. Road Co., 71 Mo. 514. (2) Instruction 1 places a duty on appellant to exercise the highest degree of care in the maintenance and construction of the elevator. The petition contains no charge of negligent maintenance or construction. Kuhlman v. Water Co., 271 S.W. 797; Kessler v. Power Co., 283 S.W. 710; State ex rel. Coal & Coke Co. v. Ellison, 195 S.W. 724; Yawitz v. Novak, 286 S.W. 66; Rosenzweig v. Wells, 273 S.W. 1073. (3) Instruction 1 is abstract, is not based upon the evidence or the pleading, and is misleading and general. Feldewerth v. Wabash Ry. Co., 181 Mo.App. 630; Smith v. Motor Service Co., 273 S.W. 745. (4) The court erred in refusing to give to the jury appellant's requested Instruction B. Respondent undertook to plead specific negligence and thereby assumed the burden of proof. Porter v. Railway, Light, Heat & Power Co., 277 S.W. 915; Orcutt v. Century Building Co., 201 Mo. 424; McGrath v. Transit Co., 197 Mo. 97; Bonnarens v. Lead Belt Ry. Co., 273 S.W. 1047; Salzman v. Athletic Tea Co., 236 S.W. 908.

Mark Eagleton and Hensley, Allen & Marsalek for respondent.

(1) The trial court did not err in refusing to sustain defendant's demurrers to the evidence at the close of plaintiff's case and at the close of the whole case. (a) The amended petition pleads no act of specific negligence. The allegation in the amended petition that the elevator "did move, and did start in motion, and did descend, as a direct and proximate result of negligence and carelessness of defendant," is an allegation of general negligence. Roscoe v. Street Ry. Co., 202 Mo. 576; Price v. Street Ry. Co., 220 Mo. 435; Pointer v. Const. Co., 269 Mo. 104; Bergfeld v. Railways Co., 285 Mo. 654; Carlson v. Wells, 276 S.W. 27; Porter v. Power Co., 277 S.W. 913; Brindley v. Wells, 308 Mo. 1; Kean v. Piano Co., 206 Mo.App. 170; Gibbons v. Wells, 293 S.W. 89. (b) There was no failure of proof of the cause of action alleged. Plaintiff did not allege that she was caused to fall merely by the descent of the elevator. She alleged, in the conjunctive, that the elevator, through defendant's negligence, "did move, and did start in motion and did descend, as a direct and proximate result of negligence and carelessness of defendant," causing plaintiff's injuries. And the proof clearly supports a recovery under this general allegation. Bergfeld v. Railways Co., 285 Mo. 654; Price v. Street Ry. Co., 220 Mo. 435; Meeker v. Union Electric Co., 279 Mo. 574. (2) There was no error in giving plaintiff's Instruction 1. Since the petition alleges negligence in general terms, making the case clearly one for the application of the res ipsa loquitur rule, when plaintiff made a prima-facie case by showing the unusual movements of the elevator and plaintiff's consequent injury, the burden devolved upon defendant to show that such unusual movements were occasioned by no negligence on its part, whether by way of faulty construction or maintenance, or negligent operation thereof. And it was proper to tell the jury the degree of care that defendant, under the law, was required to exercise as to all of these matters, under the circumstances. It was not a mere abstract declaration of law, but properly applied the law to the facts in evidence, was within both the pleadings and the evidence, and was in nowise misleading or prejudicial. Price v. Street Ry. Co., 220 Mo. 435; Lemon v. Chanslor, 68 Mo. 340; Mayne v. Railways Co., 287 Mo. 235; Brindley v. Wells, 308 Mo. 1; Furnish v. Mo. Pac. Ry. Co., 102 Mo. 438; Cool v. Peterson, 189 Mo.App. 717; Benjamin v. Street Ry. Co., 133 Mo. 274. (3) If plaintiff's Instruction 1 is subject to criticism (which respondent denies), the giving thereof could not have been harmful or prejudicial, since defendant adduced no evidence to explain the casualty consistent with due care on its part and to repel the presumption of negligence arising from the proof establishing plaintiff's prima-facie case; and consequently the judgment is not only for the right party, but is the only result that could, with propriety, have been reached in the case. Shinn v. Rys. Co., 248 Mo. 173; Nagel v. Railroad, 169 Mo.App. 284; Barkley v. Cemetery Assn., 153 Mo. 300. (4) The testimony of Mrs. Whitney as to the statement or exclamation of the elevator operator at the time of the casualty, that "the car must be broke," came in without objection, and was properly a part of the res gestae. It was cogent evidence of faulty construction or maintenance. Barz v. Yeast Co., 308 Mo. 288; Rosenweig v. Wells, 308 Mo. 617; Prior v. Payne, 304 Mo. 560. (5) There was no error in refusing to give defendant's requested Instruction B. Since plaintiff did not plead any specific act of negligence, plaintiff did not assume the burden of proof referred to in the instruction. On the contrary, after plaintiff made out her prima-facie case as she did, by showing the unusual movements of the elevator and plaintiff's consequent injury, the burden was cast upon defendant to explain the happening of the casualty consistent with due care on its part; and it would have been clearly error to have given this instruction. Price v. Street Ry. Co., 220 Mo. 435; Carlson v. Wells, 276 S.W. 29; Porter v. Rys. Co., 277 S.W. 913; Stauffer v. Railway Co., 243 Mo. 317; Mayne v. Railways Co., 287 Mo. 248; Hurck v. Railroad, 252 Mo. 39; Trowbridge v. Fleming, 269 S.W. 610; Stroud v. Cold Storage Co., 285 S.W. 165.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

This is an action by an invitee to a department store to recover damages for injuries arising from a fall caused by the negligent starting of a passenger elevator. The jury returned a verdict in favor of plaintiff for nine thousand dollars, defendant appealing from the judgment entered thereon.

The evidence submitted on the part of plaintiff warrants the finding that the store operated by defendant was located at Sixth and Washington Avenue in the city of St. Louis. In the forenoon of August 29, 1923, plaintiff accompanied by Mrs. Anna Whitney visited defendant's store as a customer. They entered the elevator provided for the carriage of passengers on the ground floor and it ascended with them in it to the second floor. It came to a stop three or four inches below the second-floor landing level. The operator of the elevator, a negro boy, then opened the gate, saying, "Step up, please." Plaintiff testified that in attempting to step from the elevator she placed her left foot on the second-floor landing, her right foot remaining on the elevator floor, whereupon she fell out. On looking around she saw the elevator down the shaft about four feet below the second-floor landing, being able to observe in the car the upper portion only of Mrs. Whitney's body.

Mrs. Whitney stated that the elevator on ascending came to a stop about four inches below the second-floor landing. The elevator operator, on opening the gate, then told plaintiff to step out. As plaintiff was stepping out with one foot on the second-floor landing and the other on the elevator floor, the operator jerked the elevator up about four inches and then dropped it down. Plaintiff fell out as the car went up. Upon being asked what, if anything, the operator at that time said, she replied that he stated, "The car must be broke." She further stated that she did not see the boy operate the lever or any machinery of the car.

On behalf of defendant a witness, Miss Ketterer, stated in substance that she saw the elevator stopped at the second floor. Mrs. Whitney alighted first and as plaintiff was ready to step out, while one foot was on the second floor and the other on the elevator, the elevator dropped between six inches and a foot. Plaintiff did not fall to the floor. Plaintiff was helped out by Mrs. Whitney and a colored woman. Plaintiff on alighting said she was excited, then walked around and looked at things. On cross-examination she stated that she did not see the elevator drop, but when she looked it was down six inches to a foot. She saw plaintiff rub her knee. Another witness for defendant stated that plaintiff came to the fourth floor and reported that she became frightened as she was getting off the elevator and, upon the witness asking her if she was hurt, she replied, "No, I am not hurt; I just wanted to tell you about it." Other pertinent facts, if any, will be referred to later.

I. Defendant bases certain phases of its request for a reversal of the cause upon the predicate that the amended petition by the averment that the elevator "did descend" pleads specific negligence. It is said that the averment...