Unrein v. Oklahoma Hide Co.

• Decision Date: 09 October 1922
• Docket Number: No. 22481.,22481.
• Parties: UNREIN v. OKLAHOMA HIDE CO.
• Court: Missouri Supreme Court

244 S.W. 924

295 Mo. 353

UNREIN v. OKLAHOMA HIDE CO.

No. 22481.

Supreme Court of Missouri, Division No. 2.

August 28, 1922.

Motion for Rehearing Denied

October 9, 1922.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Margaret Unrein against the Oklahoma Hide Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Johnson, A. P. Leacy, and Donald W. Johnson, all of Kansas City, for appellant.

W. W. McCanles and Hogsett & Boyle, both of Kansas City, for respondent.

DAVID E. BLAIR, J.

Action for damages for death of the husband of plaintiff (respondent here), caused by alleged negligence of defendant. Trial to a jury resulted in EL verdict for plaintiff for $8,000. After unsuccessful motions for a new trial and in arrest, defendant appeals.

Since appellant's main contention is that the trial court erred in not sustaining its demurrer at the close of all the evidence, a rather full statement of the facts must he made. Defendant was engaged at Kansas City in the business of buying and selling hides at wholesale, and plaintiff's husband was in its employ as a laborer. The injury which resulted in the death of deceased occurred at the warehouse of said company on October 15, 1918. Defendant's warehouse was a brick building consisting of a main floor and basement, approximately 100 or 125 feet long by 50 feet wide. A freight elevator about the middle of the building along the east wall and about 5 by 6 feet in size afforded means for lowering and raising the trucks used in moving hides.

Deceased was assisting one Tilley, defendant's foreman, in moving hides from the first floor to the basement. Working together, they had taken down a track loaded with hides, and when same was partially unloaded Tilley returned to the first floor to weigh another truckload of hides, and deceased was left in the basement to finish unloading. After Tilley weighed the other truckload of hides the loaded truck was moved upon the elevator at the first floor, and two other employees rode the elevator as it descended into the basement. When it descended a portion of the way, a scream was heard, and then a crash before the elevator could be stopped. On examination it was found that Unrein had been sitting upon his empty truck placed in a position squarely under the elevator, and that he had been crushed by it. Two vertebrae were broken and the spinal cord was injured. His injuries resulted in instant paralysis, and in his death four days later. Immediately upon being released from the elevator deceased exclaimed, "My God! my back is hurt; I thought I was on the elevator," or words to that effect. The elevator was operated by an electric motor which was only used in lifting the elevator. It descended by gravity and was controlled by means of a brake. The brake was operated by an endless rope which hung down in the basement and was at all times in such position as to be easily reached from the elevator. The basement had no elevator pit. The platform of the elevator rested on the concrete floor of the basement. A concrete approach, from the level of the floor and attaining an elevation of about two inches at the edge of the elevator, had been built to facilitate the use of the elevator. With the platform of the elevator at the first floor of the building a person in the basement pushing a truck up this approach would necessarily encounter a drop of a couple of inches when the wheels rolled over the top of the approach onto the space Where the elevator rests when down in the basement.

There was a skylight in the roof of the building which threw light down upon the elevator and into the elevator shaft when the elevator was down in the basement. When the elevator was at the first floor, this light was cut off. There were some windows on the west side of the basement 45 or 50 feet from the elevator and several electric lights. one north, one west, and one south of the elevator. The evidence tends to show that the elevator shaft was fenced off on the north and south sides, and that only one of the lights was burning near the elevator, and that all the other lights in the basement and the windows were more or less dingy and dirty. Defendant's foreman was used as a witness for plaintiff, and testified that the light was very poor down in the basement near the elevator shaft.

Deceased was 27 years of age, and there is evidence that he had engaged in the same kind of work, but he had, not been working there for some time. He came back to work on the afternoon of the fatal accident, and had only worked an hour or so at the time he was fatally injured.

Plaintiff's theory of the accident is that after unloading his truck deceased ran it to the elevator shaft, and, thinking the platform of the elevator was resting on the basement floor, ran his truck into the shaft without noticing the want of light from the skylight, and that the other light was so dim and insufficient that he could not see that the platform was not in position; that automatic gates would have prevented deceased from running the truck into the shaft while the platform was at the first floor. The petition counted upon six acts of negligence, but the case was submitted to the jury only on two grounds, to wit, failure of the defendant to comply with a section of the building code of Kansas City which provided for inclosing or guarding all freight elevators with automatic gates, etc., and failure to provide sufficient light around the elevator opening so that Unrein could see and know that the elevator platform was not at the basement landing. Defendant admits there is substantial proof of its negligence in these two particulars, and bases its contention that the case should not have been submitted to the jury upon contributory negligence on the part of deceased.

I. Was Deceased Guilty of Contributory Negligence as a Matter of Law?

Defendant contends that the light conditions were such that,, if deceased had exercised any care at all, he would have known that the elevator was at the top floor, and not down In the basement. If the elevator, had been resting on the basement floor, the light from the skylight above would undoubtedly have been sufficient to have disclosed its position. The question is whether the absence of light from the skylight would have warned a man of ordinary prudence, possessing the experience of deceased and in the exercise of reasonable care for his own safety, that the elevator was not resting on the basement floor. Had the elevator been protected by automatic gates Properly operating, it would have been impossible for deceased to have pushed his truck into the space usually occupied by the elevator without discovering the elevator was not there. Defendant concedes its failure to equip the elevator with such gates. The effect of the admitted violation by defendant of the city ordinance must therefore be taken into consideration in determining the negligence of deceased as a matter of law.

Statutes which require guarding of dangerous machinery and that automatic gates be furnished at elevator entrances are enacted for the very purpose of protecting those coming within their provisions against their own thoughtless acts in the performance of their ordinary duties. They contemplate that at times such persons will fail to observe the precautions necessary to protect them in, the absence of guards, gates, etc. They cannot be held to be guilty of negligence as a matter of law for the doing or the failure to do many acts which would bar recovery if such acts were done in connection with machinery or appliances not coming within the provisions of such statutes. The ordinance required automatic gates. The purpose of such requirement was to keep persons from falling into the shaft or being struck by or caught in the elevator. The only danger in the basement came from the descending elevator—the very thing which caused deceased's injuries. His act in entering the shaft while the elevator was on the first floor was therefore of the character the ordinance requiring gates was designed to protect him against, and he came within the rule above announced. The ordinance was designed to protect heedless acts on his part liable to be committed by men of ordinary prudence under a like situation. Support for these views is found in the following cases: Shaw v. Kansas City (Mo. Sup.) 196 S. W. 1091, loc. cit. 1098; Simpson v. Iron Works, 249 Mo. 376, loc. cit. 389, 155 S. W. 810; Hughes v. Contracting & Mfg. Co., 188 Mo. App. 549, loc. cit. 557, 176 S. W. 334.

In determining whether, when deceased pushed his truck in under the elevator and sat Sown on it, he was guilty of negligence, the jury had the right to consider the extent of his familiarity with the elevator and his surrounding conditions. Tilley, the foreman, testified that deceased went to work Et noon on the day of the accident, and had not worked there before while he was there, but he thought deceased said he had worked there before. This witness did not undertake to testify to facts showing' that deceased was familiar with the effect of light from the skylight. Hays, one of defendant's witnesses, said that deceased had worked there a couple of weeks during the preceding month, and that most all the work he did was helping bring the hides down (presumably the same operation in which he was engaged at the time of the accident). Chilcoat, another witness for the defendant, testified that deceased had worked there about a month off and on, not steady, but he did not say what work he was doing. The jury was not bound to believe the testimony of defendant's witnesses, although uncontradicted. Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505; St. Louis Union Trust Co. v. Hill, 283 Mo. 278, 223 S. W. 434; Keller v. Butchers' Supply Co. (Mo. Sup.) 229 S. W. 173. The jury was not required to believe the uncontradicted testimony of defendan...