Wendler v. People's House Furnishing Co.

• Decision Date: 03 December 1901
• Citation: 165 Mo. 527,65 S.W. 737
• Parties: WENDLER v. PEOPLE'S HOUSE FURNISHING CO.
• Court: Missouri Supreme Court

65 S.W. 737

165 Mo. 527

WENDLER v. PEOPLE'S HOUSE FURNISHING CO.

Supreme Court of Missouri.

December 3, 1901.

MASTER AND SERVANT — ELEVATOR SHAFTS — BARRIERS — LIGHTS — DISOBEDIENCE OF ORDINANCE — INSTRUCTIONS — REMARKS OF COUNSEL.

1. The neglect to furnish a reasonably safe place for a servant to work, though with the servant's knowledge, does not make the danger arising therefrom a risk assumed by the servant.

2. In a suit for injuries received by an employé through falling into an elevator shaft, plaintiff's evidence tended to show that the room was dark and the electric lights unlit, that the railing around the shaft required by the statute was left open under the instructions of the man in charge, and that the employés were told to use as little light as possible. Plaintiff had worked for defendant some 18 months; the condition as to the lights, etc., being the same. Defendant's evidence tended to show that the electric lights were unnecessary on a bright day, but that they could be used whenever necessary. Held, that a nonsuit was properly refused.

3. In an action for injuries received by an employé from falling into an unguarded elevator shaft, an instruction that, if the room near the shaft was insufficiently lighted, etc., plaintiff was entitled to recover, was not objectionable as assuming that the room was unlighted.

4. An instruction that, if the room near the shaft was insufficiently lighted, etc., plaintiff could recover, was not objectionable because failing to call the jury's attention to an electric light bulb in front of the shaft, which plaintiff might have turned on; that being merely one of the many facts in evidence for the jury to consider.

5. An instruction that, notwithstanding plaintiff continued his employment knowing the room was unlighted and the shaft unguarded, he could recover, if the danger was not such as to threaten immediate injury to him, or to cause an ordinarily prudent man to leave the service, was not objectionable as singling out and giving undue prominence to the facts stated, being rendered necessary by a plea of contributory negligence.

6. The failure of an employer to provide barriers for an elevator shaft as required by statute, or where he has provided them, but fails to keep them closed when the shaft is unused, is negligence.

7. Where a city ordinance requiring elevator shafts to be guarded provided that parties maintaining such shafts should be notified to furnish barriers, and should be in default on failure to provide them for 30 days, no notification was required to a party who had provided such barriers, but failed to keep them closed when the shaft was not in use.

8. A statement by plaintiff's counsel, in addressing the jury, that "whenever the lawmakers tried to pass laws protecting the employés corporations were up in arms against the law," and "when they pass laws to put up fences around elevators they kick," was insufficient to require reversal, where the trial court admonished counsel to confine himself to the evidence, and the incident ended.

Sherwood, Robinson, and Marshall, JJ., dissenting.

In banc. Appeal from St. Louis circuit court; Rudolph Pinzel, Judge.

Action by William Wendler against the People's House Furnishing Company. Judgment for plaintiff, and defendant appeals. The judgment was afterwards assigned to plaintiff's wife, Johanna Wendler, and plaintiff himself died. Judgment affirmed.

The following is the opinion in division:

VALLIANT, J.

William Wendler, the original plaintiff, was a cabinet maker in the employ of defendant corporation, and sued to recover damages for personal injuries sustained by him in falling through an elevator opening in defendant's establishment. The building in which defendant conducted its business was on the east side of Broadway, in St. Louis, fronting west, and was 135 feet from front to rear. In the rear 45 feet on the first floor there was walled off a shipping room, the partition walls of which were composed partly of wood and partly of glass. There was an elevator located in the northwest corner of the shipping room, running through openings in the floors from the cellar to the upper stories. The opening was 9 feet wide, and extended 6 feet 9 inches from the north wall of the building. There were appliances for four incandescent lights hanging in the room, of the usual size of the electric bulb, one in the southeast corner, one about 2 feet in front of the elevator, and two on a line with it eastward; the three being about 12 feet apart. The testimony on the part of the plaintiff tended to show that by order of defendant these lights were not lit as a general rule, except early in the morning and late in the afternoon or evening, but were turned off during the day, and they were not lit when this accident occurred, and that when the room was occupied with furniture as on that day the natural light was insufficient. The testimony for plaintiff also tended to show that he had been in the employ of defendant as a cabinet maker 18 months. The first 9 months his work was chiefly in the basement of that building, but for the last 9 months defendant had a warehouse on Biddle street, and plaintiff's work was there. He was seldom at the Broadway house, except to report morning and evening. But on the day of the accident he was to go to East St. Louis, and was at this building in connection with that duty, and was ordered to go to the second story by the elevator to get a carpet that was to go over the river, and in attempting to obey this order he went into the shipping room to take the elevator; and, it being so dark he could not see, he fell through the elevator opening into the cellar and suffered serious injuries. The elevator was operated by the various employés who had occasion to use it. Plaintiff had often used it, and was familiar with its mode of operation. The conditions as to operating the elevator, the lights, etc., were the same at the time of the accident as they were when the plaintiff worked in the building, and when he was familiar with it. He had often used the elevator, sometimes turning on the light that hung in front of it, and sometimes omitting to do so. The incandescent bulb that hung in front of the opening was 3 feet 6 inches from the west partition wall of the salesroom, and one approaching it from the rear of the room, as the plaintiff was doing, was exposed to 6 feet or more of the opening before he would have reached the bulb to turn on the light, and he testified that he fell before he reached it. In regard to the electric lights in the room, the order to the employés from the defendant's man in charge was that they should not try to see how much light they could consume, but how little they could get along with. There was a gate to guard this opening, but the testimony on both sides showed that by order of the man in charge of the room the gate was usually left open, or pushed up out of the way, leaving the opening unguarded, and it was so on this occasion. Over the objection of defendant the court permitted the plaintiff to read in evidence an ordinance of the city as follows: "The owners, lessees, or occupants of any building in the city of St. Louis, in which hatchways or wellholes exist, or shall hereafter be constructed, shall cause the same to be effectually barred or inclosed by railings, gates, or by some other contrivances approved by the commissioner of public buildings for the prevention of accidents therefrom." At the close of plaintiff's case defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and defendant excepted. On the part of defendant the testimony tended to show that on a bright day, as this was, there was enough natural light in the room to safely do the required work, but that the artificial lights were supplied for use on dark days, and that the employés were at liberty to turn on the light when they needed it. The general theory of the instructions under which the case was submitted to the jury was that, if the defendant did not use ordinary care to see that the room was sufficiently lighted and the opening sufficiently guarded, and in consequence of insufficient light and absence of a guard the plaintiff, in discharge of his duties in the service of defendant, while exercising ordinary care, fell into the opening and was injured, as complained of, he was entitled to recover, and that, though the plaintiff knew before the accident that the defendant was maintaining the elevator without being guarded, and in a room not sufficiently lighted, yet, if the danger to be apprehended therefrom was not such as would seem to an ordinarily prudent person to threaten immediate injury to him in the discharge of the duty he was performing, his continuing in the service under such conditions would not preclude his recovery. At the request of defendant an instruction was given to the effect that, if the gate was habitually kept open, and the room...