Votrain v. Illinois Terminal R. Co.
| Decision Date | 14 June 1954 |
| Docket Number | No. 43370,43370 |
| Citation | 268 S.W.2d 838 |
| Parties | VOTRAIN v. ILLINOIS TERMINAL R. CO. |
| Court | Missouri Supreme Court |
Ely & Ely, Robert C. Ely, Alphonso H. Voorhees, St. Louis, for appellant.
Mortimer A. Rosecan, St. Louis, Inman, Dyer, Gray & Dreher, Charles E. Gray, St. Louis, for respondent.
LOZIER, Commissioner.
Action under the Federal Employers' Liability Act, 45 U.S.C.A. Secs. 51-60. Plaintiff had a $75,000 verdict and, in compliance with the trial court's conditional order, remitted $30,000. Defendant appealed, alleging error: In refusal of an instruction, in overruling defendant's motions for a directed verdict and in failing to grant a mistrial for alleged improper argument by plaintiff's counsel. Defendant also contends that the $45,000 judgment is excessive.
Plaintiff sustained his injuries in a fall into the elevator shaft at defendant's 12th and Delmar Station. The elevator was operated between the track, mezzanine and station (or street) levels. There was a ceiling light in the elevator that 'lights up the interior of the cage fairly well.' There were no lights in the elevator shaft. The shaft doors, 7'-10' wide, were controlled by an interior hinge-and-bar mechanism which caused them to slide open from the left to the right (of a person facing them from the exterior). These doors closed automatically. They were opened from the interior by the operator manually pushing down on the bar. From the exterior, they could be opened only by inserting a 'key' (a piece of wire about 10 inches long and 1/4 inch in diameter, with a loop in one end) through a hole in one of the doors and pushing down on the mechanism; this opened the left door sufficiently to enable the operator to insert his left hand, push down on the bar, slide the doors to his right and thus open them completely. There were two 'keys.' One, for use only in emergency, had to be receipted for when taken out of the ticket office. The other was delivered by the operator going off duty to the operator who relieved him. Custom, practice and company rules were that the only person who should, or had the duty or authority to, operate the elevator was the person who had the key in his possession; 'the man that had the key was in charge of the elevator.' Not to plaintiff's knowledge had any employee ever operated the elevator unless he had the key. The company rule was that the employee operating the elevator 'was to at all times keep the key on his person.'
Plaintiff had been defendant's employee for about 4 years prior to June 25, 1950. In 1948, he had worked on the freight dock at the 12th and Delmar Station and had operated the elevator during the noon hour. On June 25, 1950, he was, and for about a month had been, an elevator operator-ticket agent-baggage clerk at that station. According to plaintiff, he Plaintiff had discussed this matter with his superiors and had their permission to arrive about 10 minutes late.
On the night he was injured, plaintiff left the train at the track level and rode the elevator, operated by John Oscar Thomas, the 'second trick' operator, to the station level. Plaintiff did not recall whether there were other 'up' passengers. Plaintiff said: Plaintiff did not recall whether the doors were closed or were closing as he left the elevator. The last time he saw Thomas, the latter was still in the cage, standing at the controls.
Plaintiff's first duty after he reached the station level was to go to the baggage room, get a bundle of newspapers, take them (on the elevator) to the track level and put them on a 12:15 a. m. train. When the elevator reached the station level that night, Thomas, still at the controls, opened the doors and plaintiff stepped off. Thomas gave him 'no warning or other notice of any kind as to whether he was going to remain on duty * * * and did not say anything at all about the fact that he was not going to leave but was going to operate the elevator.'
Plaintiff ran to the baggage room, grabbed the newspapers and returned to the elevator doors. Approximately a half-minute had elapsed. He used the key, opened the left door slightly and started to slide back the doors. As he was facing the doors and using a foot and a shoulder to push them back, a woman asked him for some train information. His purpose in turning was: 'When I got the door all of the way open I would be facing her.' Plaintiff continued to talk to her
Plaintiff 'got the door all the way open' and was He stepped 'straight backward,' his 'back was exactly to the door * * * and to the elevator shaft. * * *
'Q. What did you do? A. All I had to do was step backward and the elevator wasn't there and the door closed automatically by itself.
'Q. How far back did you have to step by the time that the lady said 'Thanks'--just a short distance? A. Just a short distance.
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Plaintiff fell to the top of the cage (which Thomas had taken to the track level), a distance of 22 feet.
Thomas (defendant's witness) agreed that delivery of the key put him off, and plaintiff on, duty and that after plaintiff relieved him he 'was through.' Thomas said that he did not have to go back to the track level to leave the station and that he usually left from the station (street) vevel. Obviously, the jury did not believe Thomas' testimony that he had not given plaintiff the key and that plaintiff must have taken it out of his hip pocket without his knowledge. Thomas said that, arrived at the station level, he opened the door, the 'up' passengers got off, Thomas, holding the doors open, stepped out to look at the station clock and plaintiff got off; four 'down' passengers entered the cage and Thomas took them to the track level; plaintiff's body 'hit the top of the cage' as those passengers were leaving the elevator.
Mrs. Rose Burton (defendant's witness) was working at the newsstand that night. She saw several persons get off the elevator, saw Thomas hold the doors open and step out and 'glance at the clock,' and saw plaintiff get off. 'He had the key in his hand.' She saw him go toward the baggage room and return 'at a kind of a trot' to the elevator doors;
Defendant first complains of the refusal of its Instruction D, viz.: Defendant contends that plaintiff was negligent as a matter of law, arguing:
However, this argument ignores the evidence as to other circumstances which the jury was entitled to consider. We believe that, in this case, the trial judge was required to submit to the jury whether, in stepping into the shaft 'without looking to see if the elevator was there,' plaintiff was negligent. As this is...
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