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Lee v. Publishers, George Knapp & Co.

55 Mo. App. 390, 1893 Mo. App. LEXIS 318
Missouri Court of Appeals·Decided December 5, 1893·Published·Cited by 7 cases

Opinion

Bond, J.

This is an action by the parents for compensation for services of a child whose death was occasioned in the use of an elevator belonging to defendant.

The negligence alleged in the petition is: First. A defective and negligent construction of the elevator by reason of “an open space between the floor of said elevator car and the door of the elevator,” of such dimensions as to “create a dangerous hole or trap into which the passengers upon said elevator were likely to fall.” Second. “That in the running of said elevator it shook and was unsteady.” Third. “In having in charge of said elevator an inexperienced person.”

The answer was a general denial and a plea of contributory negligence. There was a verdict and judgment for $1,600 in favor of plaintiffs in the trial' court, from which the defendant has appealed.

The errors assigned are: First. That the court should have sustained appellant’s demurrer to the evidence. Second. That the court erred in giving the following instruction, viz.:

[392] “The court instructs the jury that there is a legal presumption in this case that the deceased, Robert E. Lee, was in the exercise of ordinary care at the time of his injury and death, and the burden of proving to the satisfaction of the jury that said deceased was not exercising such care, before this case can be defeated on the ground of contributory negligence upon the part of the deceased, is upon the defendant.”

The first assignment of error imposes upon us the duty of examining so much of the evidence as related to the construction of the elevator openings, its steadiness of operation, and the circumstances attending the accident to the son of plaintiffs.

The construction of the elevator, and its appearance when stopped at one of the five landings, is shown in the subjoined cut:

[393]

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Lee v. Publishers, George Knapp & Co., 55 Mo. App. 390, 1893 Mo. App. LEXIS 318 (Mo. Ct. App. 1893).

55 Mo. App. 390 (Lee v. Publishers, George Knapp & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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