Winkle v. George B. Peck Dry Goods Co.

• Decision Date: 05 October 1908
• Parties: WINKLE et al. v. GEORGE B. PECK DRY GOODS CO.
• Court: Missouri Court of Appeals

112 S.W. 1026

132 Mo. App. 656

WINKLE et al. v. GEORGE B. PECK DRY GOODS CO.

Kansas City Court of Appeals. Missouri.

October 5, 1908.

1. DEATH (§ 76)—ACTIONS FOR CAUSING—EVIDENCE —CAUSE OF DEATH.

Evidence held to warrant a verdict finding that decedent was killed by the fall of a counterbalance weight following the fall of a dummy elevator.

2. MASTER AND SERVANT (§ 276)—INJURY TO SERVANT—CAUSE—EVIDENCE.

Where injury to a servant may be the result of one of several causes, for only one of which a master is liable, the servant must show with reasonable certainty that that cause produced the injury in order to establish a case for the jury.

3. EVIDENCE (§ 587)—NATURE OF PROOF—CIRCUMSTANTIAL EVIDENCE.

The existence of an ultimate fact need not be shown by direct evidence, but may be proved by circumstances.

4. MASTER AND SERVANT (§ 129)—DEATH OF SERVANT—DEFECTIVE APPLIANCES — NEGLIGENCE.

Where the brake on a dummy elevator was not used at the time the elevator fell, resulting in the death of decedent, the fact that the brake was defective and would not control the elevator when descending with a heavy load was immaterial.

5. MASTER AND SERVANT (§ 270)—EVIDENCE —OTHER ACTS OF NEGLIGENCE — APPLICATION.

The rule that evidence of other independent disconnected acts of negligence are inadmissible to show negligence in the particular case does not apply to actions for injuries to servants, where the prior occurrences sought to be shown have a direct bearing on the question whether the instrumentality by which the servant was injured was defective to the master's knowledge.

6. MASTER AND SERVANT (§ 270)—DEATH OF SERVANT—EVIDENCE.

In an action for death of a servant by being struck by a dummy elevator counterbalance weight which fell after the fall of the elevator, evidence that, on three or four prior occasions when the box fell, the weight fell as plaintiff claimed it did in the present instance, and that witness had reported the occurrence to defendant's superintendent, was admissible to show that the elevator was defective, and that defendant had knowledge of the defects in time to have corrected them by the exercise of reasonable care.

7. MASTER AND SERVANT (§ 117)—DEATH OF SERVANT—DUTY OF MASTER.

Where decedent, 13 years old, and other girls, were employed in defendant's department store, and were required to lower bolts of cloth on a defective dummy elevator, defendant, was bound to anticipate that decedent might place herself in such a position that her head would be within the range of one of the elevator weights if it should fall down the shaft, and therefore owed decedent the duty to use reasonable care to prevent such occurrence, though defendant posted a notice at the elevator reading: "Keep heads out."

8. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Decedent, 13 years old, and other girls, were employed in defendant's department store. They overloaded a dummy elevator with bolts of cloth they were directed to lower therein, so that the elevator fell. Immediately after the fall, decedent and her companion placed their heads in the elevator shaft, in violation of a notice, and were struck by the fall of a counterbalance weight. Held, that decedent was not negligent as a matter of law.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Samuel W. Winkle and another against the George B. Peck Dry Goods Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Grant I. Rosensweig, for appellant. A. S. Lyman, for respondents.

JOHNSON, J.

Plaintiffs, who were the parents of Irene Winkle, deceased, a minor, brought a statutory action for damages on the ground that the death of their daughter was caused by the negligence of defendant. The trial to a jury resulted in a verdict and judgment in their favor in the sum of $1,500, and the cause is here on the appeal of defendant.

At the time of her death, which occurred on the 10th day of September, 1904, Irene was 13 years old, and was employed as a cash girl by defendant, the proprietor of a large department store in Kansas City. She and two other cash girls of about the same age, Katie Epp and Olivia Hummes, were working on the second floor, and had been directed to carry some bolts of sheeting to a dummy elevator, and to send them thereon to a lower floor. The girls carried the bolts to the elevator door, called down to the operator, who was stationed at the foot of the shaft, to send up the car, and, when it arrived, put on the entire load, which weighed about 80 pounds—a weight greatly in excess of that which the elevator was designed to carry. The loaded car fell to the bottom of the shaft. The girls at the time were at the door, looking into the shaft, and in an instant after the car fell Katie and Irene fell to the floor unconscious. It was found that Katie had received a wound on the forehead, consisting of a bruise and a slight abrasion of the skin. Irene's skull was fractured, and she died in a few hours. It is alleged in the petition that "said Irene Winkle was directed by the servants and employés of defendant in charge of said second floor of defendant's said store building to assist in loading into said elevator or hoist a quantity of sheeting to be sent down to the said 'delivery' or 'send' office, and that when 80 pounds weight of said sheeting had been so placed on said elevator, and which said Irene Winkle was then and there standing close to said elevator in the act of arranging said goods therein, the said elevator, by reason of being overloaded with said 80 pounds of goods, suddenly fell to the bottom of the shaft, and in consequence of the sudden fall of said hoist or elevator to the bottom of said shaft it rebounded, and the balance weights at the other end of the rope holding said hoist or elevator, being then at the top of the top or sixth floor, also rebounded, and such rebound caused one of said weights, weighing about 25 pounds and made of cast iron, to break off from said rope, and to fall into and down through the shaft of said hoist or elevator, striking the said Irene Winkle upon the head, directly over her forehead, fracturing her skull, and so injuring her that she died a few hours thereafter as the result of said injury. That said death of the said Irene Winkle was caused by the negligence and carelessness of the defendant, its agents, and servants in permitting the use and operation of said hoist or elevator while the same was in the unsafe and dangerous condition, owing to its method of construction, as aforesaid; also in negligently permitting the said hoist or elevator to be overloaded so that it suddenly fell as aforesaid; also in permitting said hoist or elevator to be used and operated without having provided safety checks or appliances therefor to prevent the sudden fall thereof; also in permitting said elevator or hoist to be used and operated with the insufficient check upon the rope holding up said elevator, when said defendant, its agents, servants, and employés well knew of the insufficiency thereof, or when they, by the exercise of ordinary care and caution, might have known of the insufficiency thereof in time to have avoided the accident and injury to plaintiff; and also in failing and neglecting to provide proper and secure fastenings by which to fasten the balance weights aforesaid to the rope which held up the said hoist or elevator." The answer was a general denial.

Defendant contends that the court erred in refusing its request for an instruction peremptorily directing a verdict in its favor, and argues that the evidence, even in the light most favorable to plaintiffs, does not accuse defendant of negligence either in the construction and maintenance of the elevator or in its operation, but does show that the death of the child was the direct result of her own negligence and of the negligence of her two companions—her fellow servants. No one saw what caused Katie and Irene to fall. The door of the elevator shaft in front of which the girls were standing was 2 feet square, and its base was about 2½ feet above the floor. Olivia testified that, immediately after the car or box started to fall, her companions put their heads into the opening, and looked downward into the shaft. Instantly they fell backward, and the head of Irene struck the floor violently. One witness standing a few feet away saw the girls fall, but did not see the cause. It is certain that Irene received a violent blow on the head. The skin was not broken, but the right eye and the forehead over it were badly swollen. The physician who first examined her testified: "The right eye was puffed and swollen. * * * It was bulged quite considerably, so that it seemed even to protrude from its socket—both the ball and the lid." After making an incision and laying back the scalp, he found a fracture of the skull extending over the right eye diagonally backward to the base of the skull, and another fracture across the forehead. Fragments of bone were found along the lines of these fractures. The dummy shaft extended from the basement of the building to the sixth...