State v. Allen

• Citation: 256 S.W. 1049
• Decision Date: 03 December 1923
• Docket Number: No. 24906.,24906.
• Parties: STATE ex rel. AMERICAN PRESS. v. ALLEN et al., Judges.
• Court: United States State Supreme Court of Missouri

256 S.W. 1049

STATE ex rel. AMERICAN PRESS. v. ALLEN et al., Judges.

No. 24906.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Certiorari to St. Louis Court of Appeals.

Certiorari by the State, on the relation of the American Press, against Wm. H. Allen and others, Judges of St. Louis Court of Appeals, to quash a judgment of the Court of Appeals (254 S. W. 105) affirming judgment for William J. Stubbs, a minor, by J. C. Stubbs, next friend, against the American Press, a corporation. Writ quashed, and judgment entered for defendants.

Buder & Buder, of St. Louis, for relator. Thomas B. Harvey and John S. Marsalek, both of St. Louis, for respondents.

Statement.

BAILEY, C.

On May 19, 1917, William J. Stubbs, a minor, by J. C. Stubbs, next friend, as plaintiff, filed a petition against the American Press in the circuit court of the city of St. Louis, Mo., to recover damages for injuries alleged to have been received by plaintiff, on or about the 14th day of March, 1917, while in the service of ' defendant, and by reason of its negligence. The trial before a jury resulted in a verdict for $5,000, but the judgment was reduced by order of the court to $3,500, and defendant appealed from a judgment for last-named amount, to the St. Louis Court of Appeals.

The amended petition charges that on or about March 14, 1917, defendant operated and controlled a manufacturing and mechanical establishment in the city of St. Louis, for printing, publishing, and circulation of newspapers and, in connection therewith, operated and controlled an elevator, propelled by hydraulic power, for the purpose of conveying newspapers from the basement of its establishment " to the sidewalk of the premises occupied by it; that on said day plaintiff, a minor under 16 years of age, was in defendant's employ, and was required to ride upon and operate said elevator; that plaintiff was inexperienced in the use of machinery, unfamiliar with the construction and operation of the elevator, and incapable, by reason of his age and inexperience, of understanding the construction, use, and operation of the elevator, cable, pulley, and mechanism connected therewith, and the dangers to which he was subjected, in riding upon and operating said elevator; that on said day, while plaintiff was riding upon and operating the elevator, in the discharge of his duties to defendant the elevator and cable, without warning to plaintiff, started with a sudden and unusual jerk, and caught plaintiff's right hand between the pulley and cable thereof, injuring him. The petition charges defendant with negligence in failing to guard said cable and pulley, and in failing to warn plaintiff of the danger. Another charge of negligence was that defendant violated an ordinance of said city, requiring one using a power elevator to employ a competent operator, not less than 16 years of age. A further assignment of negligence upon which the case was submitted to the jury is that defendant negligently caused and permitted the machinery controlling the motion of the elevator to be defective and out of order and, that as a result thereof, the elevator and cable were likely to start with a sudden and unusual jerk, whereby defendant negligently caused the place, where plaintiff was required to be in the performance of his duties, to be and remain unsafe and dangerous; that plaintiff was ignorant of the fact that the elevator was in said defective and dangerous condition, and was and is ignorant of the means which brought about the unusual and extraordinary movement of the elevator and cable, but that defendant, by the exercise of ordinary, care might have known, and did know, the same; and that defendant "negligently ordered, instructed, required, and thereby caused plaintiff to ride upon and operate said elevator," and that said negligence on defendant's part directly and proximately caused plaintiff's said injury.

The answer contained a general denial and a plea of contributory negligence.

Relator, in his brief, at pages 2, 3, and 4, says:

"The essential facts as found in the opinion of respondents are as follows:

"On March 14, 1917, the plaintiff, William J. Stubbs, was in the employ of the defendant, the merican Press, as a bundle boy, and his duties were in general to go into the basement, get his run, put it on a truck, bring it to the elevator, take it upstairs, then to put it on an automobile truck, and to ride along and throw the papers off. The elevator referred to was a freight hoist located in the mail room in the basement of defendant's establishment in the city of St. Louis, Mo., and ascended through an opening in the sidewalk on Chestnut street above the mail room. The hoist consisted of a wooden platform about eight feet long and four feet wide, supported by a vertical cylindrical shaft or piston which fitted into a larger cylinder or drum in the ground, and was operated by hydraulic power. A valve governing the operation of the elevator by controlling the admission of water into the large cylinder or drum, as well as the exit or escape of the water therefrom, was located in the basement. When the water entered the drum it forced or propelled the platform upward by means of the pressure thereby exerted on the piston; when water was permitted to flow from the drum, it allowed the platform to descend by force of gravity, and when water was neither flowing into nor out of the drum the platform was at a standstill. To the valve was connected a wheel about two or three feet in diameter, and about a foot east of the hoist there was a continuous wire cable which ran or passed around a flanged pulley at the top situated immediately beneath the sidewalk and around a like pulley in the basement below, and also around the large valve control wheel previously mentioned. This cable remained stationary at all times except when pulled, and did not move with the hoist when the latter was in operation; its purpose being merely to control the hydraulic valve previously mentioned, thereby governing the ascent and descent of the hoist. That portion of the cable running between the two flanged pulleys on the one side is referred to as the south cable, and that portion thereof running between the said pulleys on the other side and around the valve control wheel is referred to as the north cable. Pulling downward on the north cable, or, what amounted to the same thing, pulling upward on the south cable, would cause the hoist to ascend. On the contrary, pulling upward on the north cable or downward on the south cable would cause the hoist to descend. There was also a chain, one end of which extended through a hole in the platform of the hoist and the other end of which was attached to the wire cable; this chain served as one means of controlling the hoist, as well as to cause it to stop automatically upon reaching its destination about three or four feet above the sidewalk.

"As the plaintiff was coming up on this hoist with his bundles of papers on March 14, 1917, it stopped about two-thirds of the way up; plaintiff's head being at the time about six inches below the sidewalk level. In order to restart the platform, the plaintiff grasped the north cable about six inches below the upper pulley and pulled it downward about six inches, and the elevator then started upward. The cable then jerked back a distance of about a foot, catching the plaintiff's fingers between the pulley and the cable. The motion of the platform was not affected by the jumping back of the cable; it continued to ascend, and when it had come up far enough a driver named Higgins came and lifted plaintiff off."

Respondents, in their brief, at pages 1 and 2, in reviewing the facts stated by the Court of Appeals in its opinion, say:

"We do not, however, adopt or accede to the statement prefacing relator's brief, as it omits important and controlling facts shown by the evidence and related in the opinion, notably, the fact that the elevator by which plaintiff was injured had been starting and stopping in an erratic manner for a long time prior to the accident; that relator's electrician and foreman knew it was out of order, and had a conversation regarding its...