Seeger v. St. Louis Silver Company
| Decision Date | 22 February 1906 |
| Citation | 91 S.W. 1030,193 Mo. 400 |
| Parties | SEEGER, by Next Friend, v. ST. LOUIS SILVER COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.
Affirmed.
E. T. & C. B. Allen for appellant.
(1) There is no evidence tending to prove that the absence of a brake was the proximate cause of Seeger's injury. The circumstances of the accident demonstrate that the injury was due to other causes than defendant's alleged negligence. Goranssen v. Mfg. Co., 186 Mo. 307; Warner v Railroad, 178 Mo. 134; Plefka v. Co., 145 Mo 321; Sexton v. Railroad, 98 Mo.App. 501; Wray v Co., 68 Mo.App. 390. (2) The doctrine of res ipsa loquitur does not apply to this case: (a) Plaintiff limited his right to recover to a specific act of negligence, hence he cannot avail himself of this rule. Feary v. Railroad, 162 Mo. 96. (b) Where the evidence shows the cause of the accident there is no ground for the application of the doctrine of presumption. Worship v. Railroad, 170 Mass. 464; Buckland v. Railroad, 181 Mass. 3; Hite v. Railroad, 130 Mo. 141. (c) Where the injury may have resulted from either of the two different causes the doctrine does not apply. Fuchs v. City, 167 Mo. 620; Epperson v. Co., 155 Mo. 346; Cothron v. Co., 98 Mo.App. 348; Smart v. City, 91 Mo.App. 592; Hester v. Dold, 84 Mo.App. 454. (d) As a general rule this doctrine does not obtain where the relation of master and servant subsists. Oglesby v. Railroad, 177 Mo. 272; Copeland v. Railroad, 175 Mo. 650; Smith v. Railroad, 113 Mo. 70; Bowen v. Railroad, 95 Mo. 268; Howard v. Railroad, 173 Mo. 524; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Rickaly v. Co., 108 Mo.App. 138; Breen v. Cooperage Co., 50 Mo.App. 202; Berning v. Medart, 56 Mo.App. 448; Brown v. Co., 65 Mo.App. 164; Dobbins v. Brown, 119 N.Y. 188; Sack v. Dolese, 137 Ill. 129; Viles v. Stantesky, 83 Ill.App. 398; Huff v. Austin, 21 N.E. 864; Davidson v. Davidson, 46 Minn. 117. (3) Seeger was negligent: (a) In getting on the elevator to hoist it. He could have pulled the rope without doing so, and thus avoided the injury. (b) In getting on the elevator to go to the third floor, instead of walking up the stairs. He had the choice of a safe way, and an unsafe way. He chose the latter. He cannot recover. Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 310. (c) In attempting to remove ashes. His duty did not require it. Stagg v. Spice Co., 169 Mo. 499; Glover v. Nut Co., 153 Mo. 341; Anderson v. Box Co., 103 Mo.App. 382. (4) The negligence of Kramer was that of a fellow-servant, and plaintiff cannot recover. Hawk v. McLeod, 166 Mo. 121. (5) Under no circumstances could a verdict in favor of plaintiff be allowed to stand, and this court should reverse the order setting aside the non-suit. Warner v. Railroad, 178 Mo. 129; Coatney v. Railroad, 151 Mo. 35; State ex rel. v. Railroad, 149 Mo. 104; Veatch v. Norman, 95 Mo.App. 506.
Eugene McQuillin and Wilson A. Taylor for respondent.
(1) The case should have been submitted to the jury. Because: 1. The evidence is sufficient to warrant an inference of negligence on the part of defendant. 2. In the absence of specific explanation of the proximate cause of the injury the doctrine of res ipsa loquitur applies. Ellis v. Waldron, 19 R.I. 369; Fairbank Co. v. Innes, 24 Ill.App. 33; affirming 125 Ill. 410; Gallagher v. Edison Illuminating Co., 72 Mo.App. 576; Sackewitz v. Am. Biscuit Co., 78 Mo.App. 144; Johnson v. Railroad, 104 Mo.App. 588; Jegglin v. Roeder, 79 Mo.App. 428; Tateman v. Railroad, 96 Mo.App. 448; Turner v. Haar, 114 Mo. 346; Blanton v. Dold, 109 Mo. 74; Moore v. Korte, 77 Mo.App. 500; Hill v. Scott, 38 Mo.App. 370; Seiter v. Bischoff, 63 Mo.App. 157; Scott v. London and St. Catharine Dock Co., 3 Hurl. and Colt 596; Byrne v. Beadle, 2 H. & C. 725; Briggs v. Oliver, 4 H. & C. 407; Donohue v. Brown, 104 Mass. 21; Barnowiski v. Helson, 89 Mich. 523; 2 Shearman and Redfield, Negligence (5 Ed.), sec. 703; 1 Thompson, Negligence, sec. 1082. (2) The doctrine of res ipsa loquitur may be invoked, notwithstanding specific acts of negligence are alleged in the petition. Gallagher v. Edison Illuminating Co., 72 Mo.App. 576. (3) Irrespective of the existence of the relation of master and servant between the defendant and plaintiff, the doctrine of res ipsa loquitur obtains in this case. Blanton v. Dold, 109 Mo. 64; Gerlach v. Edemeyer, 47 N.Y. Super. Ct. 292. (4) The defendant was guilty of negligence in failing to have the elevator inspected and in reasonably good repair. Haviland v. Railroad, 172 Mo. 112; Hickman v. Railroad, 22 Mo.App. 344; Gutridge v. Railroad, 105 Mo. 520; Minnier v. Railroad, 167 Mo. 113; Grattis v. Railroad, 153 Mo. 403. (5) In the absence of evidence to the contrary, the law presumes that the person damaged was in the exercise of ordinary care. Weber v. Railroad, 164 Mo. 205; Buesching v. St. Louis Gas Light Co., 73 Mo. 233. (6) This presumption of due care obtains, notwithstanding knowledge on the part of the one injured of the dangers involved. O'Donnell v. Patton, 117 Mo. 20; Parsons v. Railroad, 94 Mo. 294; Petty v. Railroad, 88 Mo. 320; Loewer v. Sedalia, 77 Mo. 446; Smith v. St. Joseph, 45 Mo. 449.
This is an action for $ 5,000 damages for personal injuries received by the plaintiff on the 25th of November, 1902, by reason of being struck by the falling of a broken piece of a cog wheel on an elevator in the premises occupied by the defendant, at number 207 Chestnut street in the city of St. Louis. At the close of the whole case the court sustained a demurrer to the evidence, and the plaintiff took a nonsuit with leave. Thereafter the court sustained the motion to set aside the nonsuit, and the defendant appealed.
THE ISSUES.
The petition alleges that at the date of the accident the defendant was engaged in the silver plating business, and occupied a four-story building, through the western part of which was a hatchway or elevator opening, from the ground floor to the top of the building; that in said hatchway was an elevator for the purpose of hoisting and lowering materials to and from the various floors of the building; that said elevator was operated by hand, by means of a shive rope, pulleys, wheels and other machinery; that plaintiff entered the employ of the defendant on the 20th of November, 1902, and as a part of his employment was required to remove barrels of ashes from the several floors of said building to the bottom floor thereof, by using the said elevator, and there to empty them and return the empty barrels to the floors above; that on the 25th of November, 1902, plaintiff, under the immediate direction of defendant's foreman, undertook, with the assistance of another employee of the defendant, to remove a barrel of ashes from the third floor of said building; that he, with said assistant, placed the barrel on the elevator, boarded said elevator, and took it to the basement floor, where he emptied the barrel, and replaced it on the elevator, and boarded the elevator and intended to return, with the barrel, to the third floor; that as he was about ready to pull the shive rope to "remove" the elevator, a large wheel, being a part of the machinery of the elevator, at the top of the hatchway, broke and gave way and a part of said wheel fell through the hatchway, and struck the plaintiff on the head, fracturing his skull, and greatly wounding him; that the wheel and other machinery used in operating the elevator were, and had been for some time prior to the accident, "unsafe, old, worn and dilapidated and unfit for use; that the brake thereof was out of repair, or not in use at said time; that said defendant, well knowing the condition of said elevator and machinery and appliances thereto, negligently and wrongfully permitted the same to be and remain in a defective and unrepaired state; that at the time plaintiff received the injury, as aforesaid, he was a minor fourteen years of age, and had only been employed for a period of about five days by defendant in said establishment; that because of his youth and inexperience, he was not qualified to control or operate the elevator used by defendant in carrying on its business, and was not aware of the hazard incident to the operation of said elevator; that the said defendant, well knowing the youth and inexperience of the plaintiff, and the danger incident to the operation of said elevator, failed and neglected to warn or instruct plaintiff as to the danger of said elevator, or how to use the same, and negligently and wrongfully directed, or suffered and permitted, this plaintiff to work with and operate said elevator, well knowing the same to be dangerous, and unfit to be used, as aforesaid."
The answer is a general denial, coupled with a plea of contributory negligence: first, in going upon and attempting to raise an elevator, which immediately theretofore had been broken and rendered dangerous to his knowledge and without the knowledge of the defendant, by the careless and negligent use thereof by himself and one Kramer, a fellow servant; and, second, in violation of the rule of the defendant, communicated to the plaintiff, prohibiting the use of said elevator by persons engaged in the same line of work as plaintiff, and in disobedience to explicit orders not to use said elevator, given plaintiff by defendant. The reply is a general denial.
The case made is this:
The defendant occupied a four-story building, in which there was a freight elevator, extending from the top floor to the basement. At the time of the accident, and for some time prior thereto, the brake, or the rope that operated the brake, on the elevator was broken and out of repair, so that in lowering the elevator it was...
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