Schleef v. Schoen

• Citation: 270 S.W. 410
• Decision Date: 03 March 1925
• Docket Number: No. 18872.,18872.
• Parties: SCHLEEF v. SCHOEN.
• Court: Court of Appeal of Missouri (US)

270 S.W. 410

SCHLEEF v. SCHOEN.

No. 18872.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by William Schleef against Isaac A. Schoen. Judgment for plaintiff, and defendant appeals. On death of defendant, the cause was revived by consent against Florence H. Schoen, executrix. Affirmed.

W. E. Moser, of St. Louis, for appellant.

John Neu, Jr., and Earl M. Pirkey, both of St. Louis, for respondent.

BRUERE, C.

The plaintiff was injured, on December 5, 1922, by the falling of a freight elevator, while in the employ of Isaac A. Schoen, Aaron Schoen, and Lee M. Schoen, partners in business, and brought this action against said partners to recover for his injuries. No service was had upon defendants Aaron Schoen and Lee M. Schoen, and plaintiff dismissed this cause as to said defendants. The judgment below was for the plaintiff and against the defendant Isaac A. Schoen for $6,800 and the defendant appealed. Since the appeal was taken the defendant died, and by consent the cause was revived against his executrix.

The petition charges that the defendants were partners in business, and as such were the owners of and in possession and control of an elevator situate in the premises known as 112 Pine street in the city of St. Louis, Mo.; that plaintiff was in the service of defendants as a laborer; that, while he was on the car of said elevator, in the discharge of the duty of his said employment, the cogwheel at the top of the elevator, over which a rope ran that held the elevator car, broke, and thus caused said car to fall to the basement whereby plaintiff was greatly jarred and permanently injured.

The negligence charged in the petition, and upon which the cause was submitted to the jury, is that the cogwheel was defective in that it had a crack or flaw in it, and that this defect caused it to break; that defendants knew, or by the exercise of ordinary care would have known, that said wheel had such crack or flaw in it and of the danger of injury to plaintiff therefrom before plaintiff was injured and in time to have by the exercise of ordinary care remedied said condition before plaintiff was injured and thereby averted the injuries to plaintiff, but that defendants negligently failed to do so, and negligently maintained said elevator in its said defective condition, and negligently required plaintiff to use said elevator and be on the car thereof.

The answer was a general denial.

The assignments of error go to the court's refusal to direct a verdict for defendant at the close of all the evidence, to the rulings of the court in the admission of evidence, and to the action of the jury as to the amount of damages awarded by them.

The facts are these: The deceased and his two sons, Aaron and Lee M. Schoen, were partners in business, and as such were engaged in the fur business in the building known as 112 Pine street in the city of St. Louis, Mo. Said building was equipped with an electric elevator. This elevator was of the type known as a gravity elevator. It ascended through the application of electrical power, and descended by gravity. At the top of the elevator shaft and fastened to a heavy timber was a cast iron cogwheel over which a rope ran that carried the elevator. The defendants were in the possession of this elevator, and used it in conducting their said business. The plaintiff was in the employ of the defendants as a laborer. His duties required him to use said elevator in carrying materials from different parts of the said building. At the time of the accident he intended to carry, by means of the elevator, some tires from the fourth floor of said building to the basement. While engaged in putting the tires upon the elevator, at said fourth floor, it suddenly and without warning fell to the bottom of the shaft, and the plaintiff received severe and permanent injuries. The evidence is undisputed that the fall of the elevator was due to the breaking of the said cast iron cogwheel.

In behalf of the plaintiff, the evidence tended to show that the said cogwheel, which carried the entire load of the elevator, was defective, in that it had old cracks and flaws in it of long standing; that said defects were patent and rendered the elevator dangerous when used; and that they caused said cogwheel to break.

The defendant's evidence tended to show that defendants had leased the building and moved into it on November 28, 1922; that the defendants employed the Bauer Elevator Company to go over the elevator and put it in good condition; that said company examined the elevator, and, with the exception of the motor, discovered nothing wrong with it; that the Bauer Company repaired the motor and turned the elevator over to the defendants on December 2, 1922; and that the elevator was in continuous use after said last flamed date until December 5, 1922, when plaintiff was injured.

The evidence is undisputed that the plaintiff was in the line of his duty in the use of the elevator. The defendant therefore owed him the duty to use reasonable care and caution to provide an elevator reasonably safe for the purpose for which it was intended to be used. This duty of the defendant was a primary obligation which he could not delegate so as to shield himself from responsibility. This rule of law is so well settled that it needs no citation of authorities to support it.

Counsel for defendant contend that the evidence shows, as a matter of law, that the defendant discharged its whole duty when it caused the elevator to be inspected by the Bauer Elevator Company shortly before the accident, and when said company, after repairing the elevator, adjudged it to be in a safe condition.

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