Stubbs v. American Press

• Decision Date: 02 July 1923
• Docket Number: No. 17429.,17429.
• Citation: 254 S.W. 105
• Parties: STUBBS v. AMERICAN PRESS
• Court: Missouri Court of Appeals

254 S.W. 105

STUBBS v. AMERICAN PRESS

No. 17429.

St. Louis Court of Appeals, Missouri.

July 2, 1923.

Rehearing Denied July 12, 1923.

Appeal from St. Louis Circuit Court; Moses Hartman, Judge.

"Not to be officially published."

Action by William J. Stubbs, by J. C. Stubbs, his next friend, against the American Press (formerly German-American Press Association). Judgment for plaintiff, and defendant appeals. Affirmed.

Buder Buder, of St. Louis, for appellant.

Thomas B. Harvey and Safford & Marsalek, all of St. Louis, for respondent.

ALLEN, P. J.

This is an action for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant corporation and by reason of its negligence. The trial, before the court and a jury, resulted in a verdict for plaintiff in the sum of $5,000, but the trial court required plaintiff to remit $1,500 from the verdict as a condition to the overruling of defendant's motion for a new trial. Such remittitur having been entered by plaintiff, judgment was rendered for him in the sum of $3,500, from which the defendant prosecutes the appeal before us.

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 the 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 was a minor, under the age of 16 years, Was in defendant's employ, and was required by defendant, in the course of his employment, to ride upon and operate mid elevator; that plaintiff was inexperienced, in the ace 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 subject in riding upon and operating the elevator; and that, on said day, while plaintiff was riding upon and operating the elevator, in the discharge of his ordinary 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 negligence on the part of defendant in failing to guard said cable and pulley, and in failing to warn plaintiff of the danger. Another assignment of negligence is based upon the alleged violation by defendant of an ordinance of the city of St. Louis, requiring one using a power elevator to employ a competent operator, not less than 16 years of age.

A further assignment of negligence (that upon which the case went to the jury) is that defendant negligently caused and permitted the machinery controlling the motion of the elevator to be, defective and oat 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."

Defendant by its answer denied generally the allegations of the petition, and alleged "that whatever injuries plaintiff suffered, aa set out by him in the petition, were due and caused solely by his own negligence directly contributing thereto."

The elevator referred to in the petition was a freight hoist located in the "mail room" in the basement of defendant's building, which ascended through an opening in the sidewalk on Chestnut street in said city. When the hoist was not in use this opening in the side" walk was covered, and when the hoist was in use a screen was placed about the opening as a guard. The hoist consisted merely 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, and was operated by hydraulic power. A valve, controlling the admission of water into the large cylinder or drum, was located in the basement and was operated by turning a wheel two or three feet in diameter. About a foot east of the hoist was a continuous, vertical wire cable, which passed over a flanged pulley, situated Immediately beneath the sidewalk, and OM a like but larger pulley in the basement below, which had a connection with the large wheel controlling the valve mentioned. This cable, it appears, remained stationary except when pulled, i. e., it did not move with the hoist when the latter was in operation; ite purpose being to control the hydraulic valve governing the ascent or descent of the hoist. The two portions thereof between the two flanged pulleys are referred to as the north cable and the south cable. And it appears that to pull the north cable downward would cause the hoist to ascend. It also appears that a chain was fastened to the platform, extending through a hole therein, with a ring at the end thereof, which, it is said, was fastened to the cable and served to control, in a measure at least, the operation of the hoist, as well as to cause it to stop aute matically upon the platform reaching a point three of four feet above the sidewalk, though there is considerable confusion in the testimony as to the effect of pulling this chain when the hoist was in the process of ascending.

Plaintiff testified that on March 14, 1917, at which time he was 15 years of age, he was in the employ of the defendant as a bundle boy, having been employed by one Link, who gave him orders and directions. As to the duties of a bundle boy in general, his testimony, as it appears in the abstract in narrative form, is as follows:

"The duties of the bundle boy on a truck were to go into the cellar and get his run and put it on a truck and bring it out and put it on the elevator and take it up and take it off' and put it on the automobile and ride along and throw them off."

He testified that on the day of his injury he was bringing up the fast mail edition to one Micky Higgins, to be taken to the Union Station; that the larger bundles of paper were put on trucks in the mail room and brought from there to the elevator. He described, es best he could, this elevator and the mechanism connected therewith. He said that to operate the elevator he would turn the large wheel in the basement, "jump on and go up with the papers"; that there was a cable "around both wheels," and also "a chain that came through the platform of the elevator which you pulled to go down, and. which was attached to the cable some way," but that one could not make the elevator go up by pulling that chain. He testified that prior to the time of his injury the elevator, if started from the bottom, would frequently stop about two-thirds of the way up, though he had never been on the elevator when this occurred prior to March 14, 1917.

He further testified that on the day of his injury, when he went into the basement, Link told him to "hurry up and get his run up"; that he had ridden on this elevator every day since he had been a bundle boy on the automobiles; that upon this occasion he got the papers from the mail room, put them on the truck and then on the elevator, and informed Link of that fact; and that Link then told him to "bring them up and give them to Micky," telling him that if the elevator stopped to pull the cable. He stated that he then "went and got on, turned the wheel down there and jumped on the elevator to bring them up"; that when the elevator had reached a point "about two-thirds of the way up," plaintiff's head being then about Six inches below the level of the sidewalk, It stopped, whereupon he grasped the north cable about six inches below the upper pulley and pulled it downward about a foot, and when he did so the "elevator jerked and the cable jarred up"; and that when the cable "jerked back" plaintiff's fingers were caught between the pulley and the cable, causing his injuries. He said that the elevator jarred and began to ascend, and he endeavored to extricate his hands, and when the elevator had nearly reached the sidewalk he was lying prostrate upon the platform with his head beneath the sidewalk; that he then screamed, and Higgins came and pulled him from the platform.

Plaintiff further testified that prior to the time of the accident he had had no experience in operating machinery of any kind, had not previously operated an elevator, and could not exactly describe the hoist or how it worked. He further testified that on the day prior to that of his injury he overheard a conversation between Mr. Reed, defendant's electrician and engineer, and Mr. Link, who had charge of the bundle boys, in which Link said that the elevator was out of order and told Reed to fix it, and Reed said, "All right"; but plaintiff did not know whether Reed had made any repairs on the elevator. He denied that he had seen a sign in the basement of the building prohibiting any one from riding on the elevator.

On cross-examination Plaintiff reitrated that Link told him to pull the cable if the elevator stopped, and said that Link had told the bundle boys to get on the elevator so that the papers would not fall off; that during the nine months...