Lee v. Publishers Knapp & Co.

Supreme Court of Missouri

Lee v. Publishers Knapp & Co.

56 S.W. 458, 155 Mo. 610, 1900 Mo. LEXIS 267

CourtSupreme Court of Missouri

DecidedMarch 30, 1900

StatusPublished

Cited by15 cases

This text of 56 S.W. 458 (Lee v. Publishers Knapp & Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lee v. Publishers Knapp & Co., 56 S.W. 458, 155 Mo. 610, 1900 Mo. LEXIS 267 (Mo. 1900).

Pincite

Opinion

BRACE, P. J.

On the 12th of September, 1892, General Robert E. Lee, a boy about 12 years of age, generally known by the name of Willie, was killed by a fall from the cage or car of an elevator belonging to and being operated by defendant in its five story building on the corner of Third and Chestnut streets in the city of St. Louis.

This action was originally brought by the father and mother of said child to recover damages for his death, and upon a trial thereof resulted in a verdict and judgment for the plaintiffs in the circuit court for the sum of $1,600. On appeal by defendant from that judgment, to the St. Louis Court of Appeals, the same was reversed for error in giving an instruction. 55 Mo. App. 390. Upon a second trial in the circuit court, the jury returned a verdict for the plaintiffs for one cent damages, and on motion, that verdict was set aside and a new trial granted by that court. Erom that order the defendants appealed to this court, where the order granting a new trial was sustained, 137 Mo. 385. The father having died in the meantime, the suit was thereafter prosecuted by the respondent, Elizabeth Lee, his mother, as sole party plaintiff, and upon the third trial she obtained a verdict and judgment for $3,500. Erom which judgment the defendant appeals, assigning as error:

1. The refusal of the court to sustain defendant’s demurrer to the evidence.

2. The sustaining by the court of plaintiff’s objections to certain questions propounded for the defendant.

3. The giving of instructions numbered 1 for the plaintiff, and an instruction on its own motion, and the refusal to give instructions 2, A, 8 and 10 for the defendant.

4. The refusal of the court to set aside the verdict for excess of damages.

[617]*617In consequence of the death of her husband, the plaintiff, on the 13th of May, 1897, filed an amended petition, setting up therein the original cause of action, the gravamen of the charge being that whilst her said son was a passenger upon defendant’s said passenger elevator he fell from said elevator and sustained such injuries that he was thereby immediately killed; “and plaintiff avers that said elevator at said time was in a defective and dangerous condition; that the construction of said elevator was such that the car or cage of said elevator in which plaintiff’s said son was being so carried, as a passenger, in passing the doorways of the several floors of said building and elevator shaft, was defective; that there was an open space between the floor of said elevator car and the door of the elevator of the dimensions of two and one-half feet in depth, three feet in width, and eight feet in height, making a. dangerous hole or trap, into which the passengers upon said elevator were likely to fall; that said elevator and shaft were also in a further defective condition, in that in the rimning of said elevator it would shake and was unsteady. And plaintiff further charges that defendant at the time of the death of her son was further negligent in having in charge of said elevator an inexperienced servant controlling same, who did not understand the operation of said elevator; that on the date aforesaid, whilst plaintiff’s said son was such passenger upon said elevator, by reason of the negligent construction of said elevator and shaft, and doorways, and by reason of said defective condition of said elevator in so running unsteady and by reason of the negligence and imskillfulness of defendant’s servant in charge of said elevator, the plaintiff’s son was while such passenger caused to be thrown or fall from said elevator car and to be thereby killed.”

The answer was a general denial and a plea of contributory negligence. The evidence in the case upon which the [618]*618legal questions to be determined, arise- on this appeal, is in substance as follows:

plaintiff’s testimony.

Elizabeth Lee, plaintiff, testified to the death of her son on the 12th of September, 1892, that his age at that date was 12 years, and that he was earning $20 per month _as a messenger boy for the Western Union Telegraph Company, and that her husband died on the 6th of May, 1896.

Andrew Aylward testified that he was a telephone operator for the St. Louis Metropolitan Police Department at the fifth district police station, Tenth and Market, and that he had been at work there three years; that in September, 1892, he was engaged as reporter boy for the Western Union Telegraph Company; that at the time he was about thirteen years old and weighed about eighty-six pounds; that he knew the Lee boy; that the latter generally worked downstairs, and used to go on duty at six o’clock and worked until two o’clock; that the Lee boy used to work until ten carrying messages, and at ten used to go upstairs and carry messages with witness to the newspaper offices for the Associated Press, among others to the St. Louis Republic; that he was in the elevator the night the Lee boy was killed; about twelve or one, between the hours of twelve and one; that just three were in the elevator, the witness, the Lee boy, and the elevator boy; that the elevator boy was about the same size as the other two, possibly a little larger,, and was a mulatto. The Lee boy was going to the fifth floor to take the reports he had up- to the office, to a Republic man whose name was Lawson or Dawson. The elevator was on the Chestnut street side, and no other elevator was running in the building at that time of night. It was a passenger elevator, and the Lee boy fell off on the fourth floor.

“Q. Right at the landing, or where ? What was the [619]*619first thing you saw of the Lee boy ? A. Me and this Willis, we were talking.

“Q. Willis was the name of the elevator boy? A. Yes; we were talking and we heard the hollow, and I turned around and saw the Lee boy on his face and hands on the space of tbe floor. I made a grab for his feet, and as I did the elevator went up more and he swung and went down.

“Q. Was this the position he was in when you first saw him? [Hading paper to witness. See next page].

“Q. I will ask you now if that diagram indicates the position .in which you saw the boy at the time ?

'“A." Yes, sir.

“Q. What was your position when you heard the boy hollow? A. 1 don’t know whether my back was turned toward him or my side toward him. I was standing in front of the Willis boy.

“Q. Where was the Lee boy the last time you saw him before you saw him in the open space ? A. He was standing in the corner opposite where we were standing.

“Q. In reference to the points- of compass, which corner of the elevator was he in? A. The southeast corner as you go into the building; you go in the elevator where the rope is; it is on this side [indicating], and on that side he was standing.

“Q. The rope is on the west side and he was standing on the east side of the opening on the south side of the elevator? A. Yes, sir.

“Q. How close to the elevator door was he, to the opening ? A. I think only that big a space [indicating]; there is a little space comes around here [indicating].

“Q. How close was he to the open space, the door of the cab ? A. He was standing right' in front of it, like in the corner.

“Q.

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