Root v. The Cudahy Packing Company

• Decision Date: 11 January 1913
• Docket Number: 17,796
• Citation: 88 Kan. 413,129 P. 147
• Parties: JOE ROOT, Appellee, v. THE CUDAHY PACKING COMPANY, Appellant
• Court: Kansas Supreme Court

129 P. 147

88 Kan. 413

JOE ROOT, Appellee, v. THE CUDAHY PACKING COMPANY, Appellant

No. 17,796

Supreme Court of Kansas

January 11, 1913

Decided January, 1913.

Appeal from Wyandotte court of common pleas.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Expert Witnesses--When Competent. In this state the opinions of experts are receivable in evidence only on the ground of necessity where no better evidence can be had, and are not receivable regarding an ultimate fact in issue where the subject can be presented to the jury so that the jury itself is capable of drawing the ultimate inference.

2. NEGLIGENCE--Packing Company Elevator--Best Evidence. In this case the opinions of experts were received in evidence to show that it is possible, under the principle upon which friction-hoist elevators are constructed, for the car to fall in the course of its ordinary use for packing-house purposes, although all the appliances are in good mechanical condition, and that such an elevator is unsafe for such use. It had been the business of the experts to construct, inspect and repair such elevators, with whose operation and use they were perfectly familiar, their experience having been gained in the principal packing houses of Kansas City, where such elevators have been in common use in large numbers for many years. Held, the best evidence of the reliability or unreliability of such elevators consisted in the demonstrated results of their use that with the facts relating to their performances before it the jury would have been competent to judge of their safety; and that the opinion evidence was improperly received.

3. NEGLIGENCE--Elevator Must be Reasonably Safe for Such Use. A packing company using an elevator for the purpose of conveying truck loads of meat and the employees handling the trucks from one floor of its packing house to another owes such employees the duty of using ordinary care to furnish an elevator reasonably safe for such use.

4. FALL OF ELEVATOR--No Presumption that Employer was Negligent. The sudden fall of such an elevator in the course of its ordinary use by a truckman, whereby he is injured, does not warrant a presumption of negligence contributing to the injury on the part of the employer.

5. FALL OF ELEVATOR--Evidence Insufficient--Demurrer Sustained. The evidence considered, and held that the defendant's demurrer to that offered by the plaintiff should have been sustained.

J. E. McFadden, of Kansas City, and O. C. Mossman, of Kansas City, Mo., for the appellant.

James F. Getty, of Kansas City, for the appellee.

OPINION

BURCH, J.:

The plaintiff, an employee of the defendant, sued for damages resulting from personal injuries occasioned by the fall of an elevator in the defendant's packing house. The plaintiff recovered and the defendant appeals.

The elevator is of the common friction hoist type. In this instance the machinery by which the car is operated is located under a suitable covering on the roof of an adjacent building. The essential parts of this machinery are a friction wheel of vulcanized paper with a face some twelve or more inches in width, a cast-iron bull wheel some thirty or forty inches in diameter and having a twelve-inch face, a wooden brake block fitting the bull wheel, a spool-shaped drum on the same shaft with the bull wheel and a control lever. The necessary attachments are a cable which lifts the car, an operating lever inside the car and a wire cable which connects the operating lever with the appliances above. One end of the car cable is fastened to a header. It passes thence over a sheave at the top of the well, then down under a second sheave fastened to the top of the car, then up over a third sheave at the top of the well and then to the drum on the bull-wheel shaft. This shaft is located between the friction wheel and the brake block. When the shaft rests at the central point between the friction wheel and the brake block the bull wheel touches neither of them. The shaft, however, is movable, so that contact may be established between the bull wheel and the brake block on one side of it or the friction wheel on the other side. The control lever is adjusted to this sliding shaft. On the arm of the control lever is a weight which bears the lever down in such a way as to push the bull wheel against the brake block and hold it there. This contact can only be broken by means of the operating lever in the car. When the bull wheel is against the brake block the operating lever points upward at an angle of sixty or sixty-five degrees. When the lever is pulled down the wire cable draws the sliding shaft away from the brake-block side of the frame in which it rests and toward the friction wheel. If the lever be pulled down far enough the faces of the bull wheel and friction wheel are pressed together. Power is communicated to the friction wheel, which revolves constantly while the power plant is in operation. To raise the car the operating lever is pulled down until contact is established between the bull wheel and the friction wheel. The friction of their surfaces causes the bull-wheel shaft to revolve and wind up the car cable on the drum. To stop the car the operating lever is simply released. The control lever then withdraws the bull wheel from the friction wheel and thrusts the bull wheel back against the brake block, which locks the bull wheel and holds the car stationary. The operating lever returns to its original position. To lower the car the operating lever is pressed down far enough to release the pressure of the bull wheel against the brake block but not far enough to establish contact with the friction wheel. The car then descends by force of gravity. The elevator is equipped with the usual countervailing weights and with a safety device intended to arrest the descent of the car should the cable break.

The elevator is used for conveying loaded trucks of meat and the men handling the trucks from upper to lower stories of a department of the defendant's plant. It was operated by a man assigned to that duty, who also opened and closed the elevator gates. On the day the injury occurred the car was stopped at the fourth floor and the gates were opened. A trucker named Laskowski placed a truck load of meat in the car and stood between the handles of his truck on the side of the car next to the operating lever. The plaintiff then pushed a loaded truck into the car beside Laskowski's truck. The car commenced to descend, its progress was not arrested, and when it struck the bottom of the elevator well the impact was sufficient to throw the plaintiff down upon the handles of his truck and to the floor and severely injure him. His companion was somewhat jarred but otherwise unhurt. The operator was left at the fourth floor. His account of the affair was that before he could close the gates and enter the car Laskowski pulled the operating lever down, and as the car descended looked up and laughed at him. A trucker who was present also testified that Laskowski pulled the lever down, but Laskowski denied that he did so.

The petition charged two classes of delinquencies on the part of the defendant: First, that the type of elevator was inherently unsafe; and second, defective parts and want of inspection. No attempt was made to establish liability on the second ground proposed. On the other hand, the proof was that the various parts of the elevator were in proper condition, that regular inspections were made, that the elevator worked perfectly before the incident complained of, that the only result of the fall of the car was to dislodge the cable from one of the sheaves, and that when the cable was replaced the elevator again worked perfectly under severe tests and has ever since continued to do so. A somewhat indirect charge of overloading under the direction of a foreman was included in the petition, but the plaintiff himself testified that the elevator had carried larger loads many times before, and consequently the theory of too much weight in the car was abandoned.

The faults which it is claimed render a friction-hoist elevator so dangerous that a reasonably prudent man ought not to adopt it were enumerated in the petition as follows:

1. There is a point at which the bull wheel touches neither the brake block nor the friction wheel, and consequently a point at which there is nothing to prevent the force of gravity from causing the car to descend.

2. No uniform speed can be maintained.

3. Because no uniform speed can be maintained no appliance can be attached insuring safety in case of accident.

4. No air cushion is provided at the bottom of the shaft to receive the car in case of a fall.

Of course the first criticism vanished before the plaintiff's own proof. There is nothing wrong in allowing an elevator cage to descend by force of gravity, and the principle of this elevator is that the bull wheel can remain at the free point only when the operator holds it there by means of the lever inside the car. If the operating lever be not manipulated, the weighted control lever holds the bull wheel securely against the brake block, and should the elevator be descending it can be stopped without utilizing the brake block and be made to rise by throwing the bull wheel against the friction wheel. Besides this, the car did not fall because there is a point at which the bull wheel touches neither the brake block nor the friction wheel. The bull wheel was in hard contact with the brake block when the plaintiff says the car commenced to descend.

The undisputed evidence of one of the plaintiff's witnesses (all the evidence on the subject) was that the operator maintains uniform speed for the car by the simple method of regulating...