Unrein v. Oklahoma Hide Company

• Decision Date: 09 October 1922
• Citation: 244 S.W. 924,295 Mo. 353
• Parties: MARGARET UNREIN v. OKLAHOMA HIDE COMPANY, Appellant
• Court: Missouri Supreme Court

244 S.W. 924

295 Mo. 353

MARGARET UNREIN v. OKLAHOMA HIDE COMPANY, Appellant

Supreme Court of Missouri, Second Division

October 9, 1922

Appeal from Jackson Circuit Court. -- Hon. Harris Robinson, Judge.

Affirmed.

J. M Johnson, A. P. Leacy and Donald W. Johnson for appellant.

(1) The demurrer to the evidence should have been given. Conceding for argument that the defendant was guilty of negligence in not providing a gate for the elevator opening, and that the light in the basement, when the elevator was at the top floor was dim, the negligence of defendant, if there was negligence with respect of these matters, it is not shown to have been the proximate cause of the injury. Latapie Vignaux v Saddlery Co., 193 Mo. 1; Poindexter v. Paper Co., 84 Mo.App. 352; Marshall v. United Rys Co., 209 S.W. 931; Spiva v. Osage Coal & Mining Co., 88 Mo. 68; Moore v. Lindell Ry. Co., 176 Mo. 528; Murphy v. Lindell Ry. Co., 153 Mo. 252; Kappes v. Brown Shoe Co., 116 Mo.App. 154; Schmidt v. Railroad, 191 Mo. 215; Butz v. Cavanaugh, 137 Mo. 503; Saxton v. Railroad, 98 Mo. 494; Fore v. Railway Co., 114 Mo.App. 551; Kauffman v. Machin Shirt Co., 140 P. 15; Taylor v. Dupont Bldg. Corp., 99 A. 284; Machies v. Hayden, 157 N.Y.S. 233; Gallagher v. Snellenburg, 210 Pa. St. 642. (2) Contributory negligence of the injured servant will defeat negligence of the master in failing to comply with a statute or ordinance regulating the guarding of an elevator opening. Authorities above; also Millsap v. Beggs, 122 Mo.App. 1; Hudson v. Railway, 101 Mo. 13. (3) Deceased was guilty of negligence in law, which directly contributed to his injury, and which is fatal to a recovery by plaintiff. Authorities above; also Purcell v. Tennent Shoe Co., 187 Mo. 276; Beymer v. Packing Co., 106 Mo.App. 726; Dieboldt v. Baking Co., 72 Hun, 403. (4) The court committed prejudicial error against defendant in the following rulings on evidence. (a) Witness Tilley on direct examination was allowed to testify: "Q. Considering the electric lights and natural lights in the basement, will you tell us, according to your best recollection the condition of the light in and about this elevator shaft at the time Mr. Unrein was hurt? A. Well, the light of course is poor." This was clearly a conclusion, and the objection should have been sustained. (b) Further, the witness Tilley was allowed to testify: "Q. When you looked down this shaft right after this happened, and saw Mr. Unrein, did you hear him say anything? A. Yes, he was talking. Q. I don't want to lead you, but what was it he said? Did he say anything about what he thought he was doing there? A. He said he thought he was on the elevator, that his back was broke, and that it would cost the Oklahoma Hide Company some money. Q. He said all those things? A. Yes, and he said he wanted some whisky." These utterances of the injured man were obviously not of the res gestae, that is to say, they lacked that spontaneity which is essential to the admission of such utterances. His call for whisky might have been spontaneous, but his declaration that it would cost the Oklahoma Hide Company some money shows that he had already begun to have other thoughts than those compelled by stress of anguish or by the action of the main event. Leahey v. Railway Co., 97 Mo. 165; Jewell v. Mfg. Co., 166 Mo.App. 562; State v. Reeves, 195 S.W. 1027. (c) If it was proper to admit the statement of the witness, "The light of course is poor," it certainly was proper for the court to have admitted the following testimony appearing in the cross examination of Tilley, to which the court sustained plaintiff's objection: "Q. Tell us in your own words the light and conditions in that shaft. A. When the elevator was down at the bottom that lets the lights down from the shaft from upstairs, which was fed by a sky light. When the elevator was down, I would say the light is sufficient. Q. Would it be sufficient, the light in there, in the elevator? Tell us just what it would be without the artificial lights? A. I would think it would be light enough to distinguish whether the elevator was in there or not." (d) The court improperly sustained plaintiff's objection to the following question and answer asked the witness Tilley on cross examination respecting the driving of a truck up the incline and into the depression on the basement floor. "Q. Would you notice any difference in driving a truck on to an elevator, or on this floor? A. Well, I would, yes, sir." This was not a conclusion, but a statement of fact by the witness who was the foreman of the warehouse, and had full knowledge of and experience with all of its conditions. (e) Still more striking is the error in sustaining the objection to the following cross examination of the same witness: "Q. And when the elevator starts to go down, would there be anything to direct a person's attention? A. Well, the man that is acquainted with the elevator certainly would. He could hear the noise of the truck being pushed on to the elevator. Also the rope revolving. The rope revolves whichever the elevator goes up or down."

W. W. McCanles and Hogsett & Boyle for respondent.

(1) Defendant admits it was negligent as charged in the petition. Section 14, Ordinance 38919 of Kansas City; Sec. 7830, R. S 1909. (2) The question of deceased's contributory negligence was a question for the jury. (a) In a case covered by a statutory provision enacted for the safety of employees, the question of contributory negligence of the employee rests upon a different basis than in cases not falling within such a statute. Shaw v. Kansas City, 196 S.W. 1098; Simpson v. Iron Works, 249 Mo. 389; Hughes v. Manufacturing Co., 188 Mo.App. 557; Brashears v. Iron Works Co., 171 Mo.App. 514. (b) The evidence presented facts from which reasonable minds could reasonably draw different conclusions as to deceased's contributory negligence. That being so, the question was one for the jury. Ganey v. Kansas City, 259 Mo. 654, 662; Butz v. Const. Co., 199 Mo. 287; Huhn v. Railroad, 92 Mo. 440. (c) It was a question for the jury whether an ordinarily careful person might not have made the same mistake Unrein made in pushing his truck into the elevator shaft believing the elevator was at the landing. Southern Bldg. & Loan Assn. v. Dawson, 97 Tenn. 367, 56 Am. St. 804; Aiken v. Sidney Steel Scraper Co., 198 S.W. 1140; Baldwin v. Coffee Co., 216 S.W. 1001; Wendler v. Furnishing Co., 165 Mo. 537; McRickard v. Flint, 114 N.Y. 222; Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479; Shoninger Co. v. Mann, 219 Ill. 242, 3 L. R. A. (N. S.) 1097; Joliffe v. Miller, 126 A.D. 763, 111 N.Y.S. 406; Wilcox v. City of Rochester, 190 N.Y. 137, 17 L. R. A. (N. S.) 741; Grimmel v. Boyd, 94 Neb. 246, 142 N.W. 893; Peoples Bank v. Margolofski, 75 Md. 432, 32 Am. St. 403; Phillips Co. v. Pruitt, 26 Ky. L. Rep. 831, 82 S.W. 628; Sheyer v. Lowell, 134 Cal. 357; Colorado Mtg. Co. v. Rees, 21 Colo. 435; Fisher v. Cook, 23 Ill.App. 621; Burgess v. Stowe, 134 Mich. 208; Morrison v. Telephone Co., 69 Hun, 100, 23 N.Y.S. 257. (d) It was a question for the jury whether Unrein was guilty of contributory negligence in remaining in the shaft for the short interval of time that elapsed until he was caught by the elevator. Southern Bldg. & Loan Assn. v. Dawson, 97 Tenn. 367, 56 Am. St. 804. The elevator caught Unrein within three seconds from the time it left the first floor landing. Some allowance of time must be made for the human mind to grasp the situation and to realize the danger. Degonia v. Railroad, 224 Mo. 596; Burge v. Railroad, 244 Mo. 102; McGee v. Railroad, 214 Mo. 543; White v. Railroad, 159 Mo.App. 509. (e) No witness saw Unrein enter the shaft or saw him in the shaft until after he was caught by the elevator. In the absence of direct evidence the law indulges the presumption that the deceased was in the exercise of ordinary care. Buesching v. Gas Light Co., 73 Mo. 233; Parsons v. Railroad, 94 Mo. 294; Stotler v. Railroad, 200 Mo. 6; Weller v. Railroad, 164 Mo. 198; Riska v. Railroad, 180 Mo. 187; Capp v. St. Louis, 251 Mo. 345; Collins v. Paper Mill Co., 143 Mo.App. 333; Stockton v. St. Ry. Co., 177 Mo.App. 286; Tanner v. Railways Co., 186 Mo.App. 264; Johnson v. Railroad, 150 Mo.App. 321; Meadows v. Life Ins. Co., 129 Mo. 93; Davis v. Railroad, 46 Mo.App. 189; Heine v. Railroad, 144 Mo.App. 443; Richter v. Railways Co., 145 Mo.App. 1; Newton v. Wabash, 152 Mo.App. 167; Pepperkorn v. Railway, 171 Mo.App. 709. (b) Contributory negligence is an affirmative defense and the burden was upon the defendant to prove it. Benjamin v. Railroad, 245 Mo. 613; Donovan v. Railroad, 89 Mo. 147; Stone v. Hunt, 94 Mo. 475. (3) Defendant's negligence was the proximate cause of the death. If defendant had provided a gate at the elevator shaft, or had provided sufficient light about the shaft, the injury would not have occurred. Therefore, defendant's negligence was the proximate cause of the injury. Harrison v. Light Co., 195 Mo. 623; Buckner v. Mule Co., 221 Mo. 709, Obermeyer v. Chair Co., 229 Mo. 111. (4) The court did not err in its rulings on the admission of evidence. (a) There was no error in refusing to exclude the answer of witness Tilley, "Well, the light, of course, is poor." Appellant did not object to the answer on the ground that it was a conclusion, so it cannot present that point to this court now. Cold Storage Co. v. Kuhlmann, 238 Mo. 705; Williams v. Loban, 206 Mo. 407; DeMaet v. Moving Co., 231 Mo. 220; Longan v. Weltmer, 180 Mo. 322. The answer was not a conclusion, but was an admissible statement of a condition. State v. Buchler, 103 Mo. 206; Rearden v. Railroad, 215 Mo. 135; State v. Robinson, 117 Mo. 664; Davis v. Street Ry. Co., 177 S.W. 1098; Fulton v. St. Ry. Co., 125 Mo.App. 244-247; Johnson v. Const. Co., ...