McKee v. Mitchell Fruit & Grocery Co.

South Dakota Supreme Court

McKee v. Mitchell Fruit & Grocery Co.

164 N.W. 65, 39 S.D. 320, 1917 S.D. LEXIS 137

CourtSouth Dakota Supreme Court

DecidedAugust 30, 1917

DocketFile No. 4111

StatusPublished

This text of 164 N.W. 65 (McKee v. Mitchell Fruit & Grocery Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKee v. Mitchell Fruit & Grocery Co., 164 N.W. 65, 39 S.D. 320, 1917 S.D. LEXIS 137 (S.D. 1917).

Pincite

Opinion

SMITH, J.

The plaintiff, a boy- 18 years of age, employed by the American Fxpress Go-mpany at Mitchell, as a driver of one of its wagons, went to -defendant’s warehouse for a- crate of bananas- to be shipped by express. The bananas were kept in a room in the ¡basement. Plaintiff took the freight elevator down to the basement; the defendant’s employees put the crate on -the elevator, plaintiff entered- the elevator, -and before the elevator, started- placed his hand upon a ¡beam extending across the elevator, to which was attached a spring which was -compressed- against the beam upon starting the elevator. When not compressed, the spring was a couple of inches- from the woo-d of the beam. His [322]*322fingers were between the spring and the wooden beam when the elevator started and the spring was compressed. One of plaintiff’s fingers was caught and somewhat injured. For this injury-plaintiff seeks damages. The trial court charged- the 'jury that, if plaintiff was in the basement assisting in elevating fruit, either at the request or suggestion of defendant, or as a part of his -duties as an expressman, he would -be entitled to recover if defendant was negligent in constructing or operating the elevator. The jury found for plaintiff, assessing his damages at $2-50. Defendant appeals from the judgment and order overruling a motion for a new trial. Appellant assigns as error insufficiency of the evidence t-o- sustain the verdict.

The record is entirely silent as to any instructions or directions by the express company to the plaintiff as to the place or manner of receiving shipments at defendant’s warehouse, nor is it contended that any such instructions- were ever given. The only evidence in the record relie-d upon -by plaintiff to show that he was acting under direction of defendant at the time of the injury was to the effect that about a month before the accident Mr. Dickson, .defendant’s manager, said to- plaintiff

“If you are in such a hurry, help- the boys get out the freight. That is the only way you can get away from here in that time.” This in- reply to plaintiff’s statement that the express agent told plaintiff he must get away from the warehouse by 5 o’clock.

“The night he said1 that to- me I helped the boys; went do-wn after the bananas; that is the only think I ever did to help- them.”

Plaintiff also testified that neither Dickson, the manager, nor Evans, the shipping clerk, ever told him- to ride on the elevator. Plaintiff also testified that he had ridden on the elevator 30 or 40 times before the accident.

'Coacher, a witness- for plaintiff, testified that he was driver for Wells, Fargo- Express 'Company, and stated:

“Well-, ‘there were times when he went -down in-t-o the -basement to hurry them u-p with fruit stuff;” •

—that he had ridden on the elevator, -but that if it was full he went up the stairs; that sometimes he helped- them take- out the crates and sometimes he didn’t.

Evans, on- behalf of defendant, testified, that he had seen plaintiff bring out stuff, though he was never asked to do it; that [323]*323when the power was applied at the time the accident occurred, the plaintiff was eating bananas; that he was not in there to help carry any freight; that there was no freight for him to carry out; that the witness himself got the crate of bananas and placed it on the elevator; that the express for the express drivers was placed in the north end of the warehouse, close to the door, and' that the drivers had nothing to do with getting freight ready and carrying it up from the basement; that the elevator was never used for any purpose except to elevate freight.

The instructions of the trial court above referred to became the law of the case. Assuming such instructions to be binding as the law of the case, we are of the view that the evidence in the record is insufficient to sustain the verdict and judgment, and that the case should he reversed. It is unnecessary to consider other assignments of error.

W'HITINiG, J., not sitting.

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SMITH, J.

The plaintiff, a boy- 18 years of age, employed by the American Fxpress Go-mpany at Mitchell, as a driver of one of its wagons, went to -defendant’s warehouse for a- crate of bananas- to be shipped by express. The bananas were kept in a room in the ¡basement. Plaintiff took the freight elevator down to the basement; the defendant’s employees put the crate on -the elevator, plaintiff entered- the elevator, -and before the elevator, started- placed his hand upon a ¡beam extending across the elevator, to which was attached a spring which was -compressed- against the beam upon starting the elevator. When not compressed, the spring was a couple of inches- from the woo-d of the beam. His [322]*322fingers were between the spring and the wooden beam when the elevator started and the spring was compressed. One of plaintiff’s fingers was caught and somewhat injured. For this injury-plaintiff seeks damages. The trial court charged- the 'jury that, if plaintiff was in the basement assisting in elevating fruit, either at the request or suggestion of defendant, or as a part of his -duties as an expressman, he would -be entitled to recover if defendant was negligent in constructing or operating the elevator. The jury found for plaintiff, assessing his damages at $2-50. Defendant appeals from the judgment and order overruling a motion for a new trial. Appellant assigns as error insufficiency of the evidence t-o- sustain the verdict.

The record is entirely silent as to any instructions or directions by the express company to the plaintiff as to the place or manner of receiving shipments at defendant’s warehouse, nor is it contended that any such instructions- were ever given. The only evidence in the record relie-d upon -by plaintiff to show that he was acting under direction of defendant at the time of the injury was to the effect that about a month before the accident Mr. Dickson, .defendant’s manager, said to- plaintiff

“If you are in such a hurry, help- the boys get out the freight. That is the only way you can get away from here in that time.” This in- reply to plaintiff’s statement that the express agent told plaintiff he must get away from the warehouse by 5 o’clock.

“The night he said1 that to- me I helped the boys; went do-wn after the bananas; that is the only think I ever did to help- them.”

Plaintiff also testified that neither Dickson, the manager, nor Evans, the shipping clerk, ever told him- to ride on the elevator. Plaintiff also testified that he had ridden on the elevator 30 or 40 times before the accident.

'Coacher, a witness- for plaintiff, testified that he was driver for Wells, Fargo- Express 'Company, and stated:

“Well-, ‘there were times when he went -down in-t-o the -basement to hurry them u-p with fruit stuff;” •

—that he had ridden on the elevator, -but that if it was full he went up the stairs; that sometimes he helped- them take- out the crates and sometimes he didn’t.

Evans, on- behalf of defendant, testified, that he had seen plaintiff bring out stuff, though he was never asked to do it; that [323]*323when the power was applied at the time the accident occurred, the plaintiff was eating bananas; that he was not in there to help carry any freight; that there was no freight for him to carry out; that the witness himself got the crate of bananas and placed it on the elevator; that the express for the express drivers was placed in the north end of the warehouse, close to the door, and' that the drivers had nothing to do with getting freight ready and carrying it up from the basement; that the elevator was never used for any purpose except to elevate freight.

The instructions of the trial court above referred to became the law of the case. Assuming such instructions to be binding as the law of the case, we are of the view that the evidence in the record is insufficient to sustain the verdict and judgment, and that the case should he reversed. It is unnecessary to consider other assignments of error.

W'HITINiG, J., not sitting.

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Bluebook (online)

164 N.W. 65, 39 S.D. 320, 1917 S.D. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckee-v-mitchell-fruit-grocery-co-sd-1917.