Opinion
Opinion filed September 15, 1930.
1. — Master and Servant — Elevators — Operator Injured — Negligence — Res Ipsa Loquitur. In an action to recover damages for personal injuries sustained by plaintiff while in the employ of defendant, as the operator of a passenger elevator, where the evidence disclosed that while plaintiff was operating the elevator it fell down the shaft from the thirteenth floor of the building to the ninth floor without any apparent cause and without any fault on plaintiff's part, stopping suddenly with a violent and unusual jerk, whereby she was injured, held under the evidence, plaintiff made out a submissible case under the res ipsa loquitur rule.
2. — Negligence — Res Ipsa Loquitur — Presumption — Defendant Free From Negligence. In an action for damages for personal injuries by an elevator operator, caused by the fall of the elevator, even though defendant produced evidence that the elevator machinery was in good condition, and that defendant was free from negligence, that did not preclude plaintiff from going to the jury under the res ipsa loquitur rule, the presumption of negligence arising under such rule not being a mere rule of procedure.
3. — Same — Same — Same — Specific Acts of Negligence. Plaintiff is not precluded, by showing some specific acts of negligence, from relying upon the presumption of negligence arising under the res ipsa loquitur rule.
4. — Instructions — Master and Servant — Operator Injured by Falling Elevator — Instruction Using Term "Control Cables" Instead of "Control Device or Arm" — Inadvertence — Not Misleading. In an action for personal injuries by the operator of a passenger elevator caused by the elevator falling, where an instruction required the jury to find, as an essential predicate to a verdict for plaintiff on presumptive negligence, that the sudden and unusual descent of the elevator car occurred without the "control cables" being moved, manipulated, or touched by plaintiff, such instruction using the term "control cables" instead of "control device or arm," held to be an inadvertence and not misleading, as the control device or arm used by the operator in controlling the movement of the car was fully described in the evidence; constantly referred to during the trial; there was no dispute or issue concerning it, and one of defendant's instructions told the jury that if plaintiff by improper manipulation of the "control device or arm" caused the car to fall, she would not be entitled to recover.
5. — Negligence — Contributory Negligence — Operator Injured by Falling Elevator — Thrown Over Stool by Sudden Jerk — Proximate Cause. In an action for personal injuries sustained by plaintiff caused by the fall of an elevator which she was operating and the evidence showed that she fell over a stool which she kept in the elevator and the defendant contended that the falling of the elevator was not the proximate cause of plaintiff's injury, but that the proximate cause was the presence of the stool over which plaintiff fell, and that plaintiff was guilty of contributory negligence as a matter of law in placing the stool behind her in a position where she was likely to fall over it, held, the presence of the stool was merely an incident in the causal connection between the defendant's negligence and the plaintiff's injury, contributing merely in a remote way to the injury and afforded no evidence of contributory negligence on the part of the plaintiff.
6. — Appellate Practice — Objection to Manner and Use of Deposition — Too General for Review. An objection made to the manner of using a deposition in the cross-examination of a witness "I object to that manner and use of this deposition," held the objection was too general to preserve the point for review.
7. — Damages — Excessive Damages — Verdict of $5000 — Not Excessive Under the Evidence. In an action for damages for personal injuries by an elevator operator caused by the fall of the elevator, a verdict for $5000, held not excessive where the evidence showed that plaintiff sustained abdominal and other injuries, causing menstrual irregularities and other disorders, and traumatic neurasthenia which might be permanent and that recovery, if it occurred, would probably be a very slow and gradual process.
Appeal from the Circuit Court of the City of St. Louis. — Hon. H.A. Hamilton, Judge.
AFFIRMED.
Buder Buder and E.E. Schowengerdt for appellant.
(1) The defendant exercised ordinary care to furnish plaintiff a suitable and reasonably safe appliance and also exercised the requisite care to maintain the same in suitable and safe condition. Under such circumstances plaintiff should not be permitted to recover. Klebe v. Distilling Co., 207 Mo. 486; Removich v. Const. Co., 264 Mo. 43; Sabol v. Cooperage Co., 313 Mo. 527; Spindler v. American Express Co., 232 S.W. 690. (2) An employer is not an insurer of the safety of his employees, or of the safety of the machinery or appliances furnished to his employees, but is only liable for injuries which are the direct and proximate result of his failure to use ordinary care to furnish a place which is reasonably safe for his employees, to do their work, or to use ordinary care to furnish reasonably safe appliances, or to use ordinary care to maintain them in suitable and safe condition. Pronnecke v. Westliche Post Pub. Co., 291 S.W. 139; Removich v. Const. Co., 264 Mo. 43; Blanton v. Dold, 109 Mo. 64; Covey v. The Hannibal St. Joseph Ry. Co., 86 Mo. 635; Sabol v. Cooperage Co., 313 Mo. 527; Compton v. Louis Rich Const. Co., 287 S.W. 474; Van Bibber v. Swift Co., 286 Mo. 317; Spindler v. American Express Co., 232 S.W. 690; Yarbrough v. Hammond Packing Co., 231 S.W. 72; Russell v. St. Louis S.F. Ry. Co., 245 S.W. 590; Ryan v. Lea, 249 S.W. 685; Wendall v. Railway Co., 100 Mo. App. 556. (3) The plaintiff has the burden of proving by the preponderance of the evidence that the master was negligent. He must show affirmatively all elements of right to recover. It is to be presumed, in the absence of evidence to the contrary, that the duties required of the master have been properly performed and the plaintiff must produce some evidence which tends to destroy this presumption. The mere showing by plaintiff that an accident happened, or that the plaintiff was injured, is not of itself sufficient to overcome this presumption in favor of defendant, nor does such showing raise a presumption of negligence on the part of the master. Sabol v. Cooperage Co., 313 Mo. 527; Removich v. Const. Co., 264 Mo. 43; Copeland v. Wabash Ry. Co., 175 Mo. l.c. 674; Pronnecke v. Westliche Post Pub. Co., 291 S.W. 141; Riger v. Fleming Lbr. Co., 210 Mo. App. 322; State ex rel. v. Cox, 298 Mo. 427; Myers v. Strauss, 264 S.W. 801; Goode v. Central C. C. Co., 167 Mo. App. 169; Compton v. Louis Rich Const. Co., 287 S.W. l.c. 480. (4) The res ipsa loquitur doctrine is not favored by the courts. Many courts limit its application to carriers of passengers and never extend its application to cases of master and servant. In those jurisdictions (including Missouri) which do in some instances extend the doctrine to cases of master and servant, the courts always limit its operation to the necessities of each particular case and such courts state positively that the doctrine should be applied only with great, if not extreme, caution to master and servant cases. Klebe v. Distilling Co., 207 Mo. 493; Removich v. Construction Co., 264 Mo. 46-50; Sabol v. Cooperage Company, 313 Mo. 540. (5) The doctrine of res ipsa loquitur is seldom applied in Missouri in cases between master and servant, and it cannot be invoked unless the evidence is such as to exclude all defensive inferences, including contributory negligence, negligence of a fellow servant, latent defects, defects which the defendant had no reasonable opportunity to discover, lack of causal connection and the assumption of risk. Under the evidence in the case at bar the doctrine should not have been applied, because the accident might have occurred from causes for which defendant was in nowise responsible and because it excluded the above-mentioned defenses of this defendant. Klebe v. Distilling Co., 207 Mo. 480; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, l.c. 49, and cases therein cited; Courtney v. Gainsborough Studios, 174 N.Y.S. 855; McGrath v. St. L. Transit, 197 Mo. 97. (6) Under the evidence in this case the plaintiff should not have been permitted to recover on the res ipsa loquitur doctrine, and the demurrer offered at the close of all the evidence should have been sustained. Glebe v. Distilling Co., 207 Mo. 480; Removich v. Const. Co., 264 Mo. 43; Wilt v. McCallum, 214 Mo. App. 320; Pronnecke v. West P.P. Co., 291 S.W. 139; Beebe v. Transit Co., 206 Mo. 419; Nelson v. C. Heinz Stove Co., 8 S.W.2d 918; Courtney v. Gainsborough Studios, 174 N.Y.S. 855; Kalman v. Pieper, 149 N.W. 203; Sheehan v. Boston Co., 220 Mass. 210, 107 N.E. 923. (7) The evidence in this case disclosed that the elevator machinery was of the latest and best type which could be procured and that it was practically new; that the engineer in charge of the elevator in question had carefully inspected the same every day prior to and on the day of the accident and immediately after the accident and had found the same to be in perfect condition; that the official inspector of the city of St. Louis had made a thorough and complete examination of the elevator only four days prior to the accident and had found the same to be in good and safe condition and had approved the safety thereof and issued his certificate thereon; that it was a physical impossibility for the elevator to start up without the control lever being moved, and there was no other evidence tending to establish any negligence on the part of the defendant. Under such circumstances the cause should not have been submitted to the jury under the res ipsa loquitur doctrine and the demurrer to the evidence should have been sustained. Klebe v. Distilling Co., 207 Mo. 480; Courtney v. Gainsborough Studios, 174 N.Y.S. 855; Kalman v. Pieper, 149 N.W. 203; Lillis v. Beaver Dam Mills, 124 N.W. 1011. (8) As between master and servant, where the servant or his associates have knowledge or opportunity to know of a defect, or of a dangerous condition existing in the machinery which caused his injury, the rule of res ipsa loquitur does not apply, but the master's negligence must be proved and if not proved the plaintiff must be nonsuited. In this case the plaintiff testified that she was an experienced operator; that she noticed the elevator was not operating properly and was acting unusual; that she knew there was something wrong with the elevator and that it was out of order, but she continued to operate the same, even though she knew of its defective and dangerous condition. Under these circumstances it cannot be said that the defective and dangerous condition of the elevator was peculiarly within the knowledge of the master. Under these facts the res ipsa loquitur doctrine is not applicable in a master and servant case, and the defendant's demurrer to the evidence should have been sustained. Klebe v. Distilling Co., 207 Mo. 480; Sabol v. Cooperage Co., 313 Mo. 527; Haynie v. Packing Co., 126 Mo. App. 88; Glasscock v. D.G. Co., 106 Mo. App. 656; Removich v. Constr. Co., 264 Mo. 43. (9) The rule of res ipsa loquitur, as establishing negligence in a master and servant case, is never applied unless the facts concerning the cause of the accident, or the condition of the machinery which caused the accident, are peculiarly within the knowledge and control of the master and not equally necessible to the plaintiff. It does not apply if the plaintiff is in a position to have or obtain the evidence to explain the condition of the machinery or the cause of the accident. Where the evidence is available to plaintiff through her fellow servants, or through other witnesses, the courts have held that the doctrine should not be applied in a master and servant case. Sabol v. Cooperage Co., 313 Mo. 527; Klebe v. Distilling Co., 207 Mo. 480; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43; Russell v. Railway Co., 245 S.W. 590; Byers v. Essex Investment Co., 281 Mo. 375; Dougherty v. Mining Co., 207 S.W. 254; Reicks v. Brewing Co., 227 S.W. 631; Kuether v. Light Power Co., 276 S.W. 108; Porter v. Ry. Co., 277 S.W. 913; Stolle v. Brewing Co., 271 S.W. 497; Hamilton v. Southern Ry., 123 Mo. App. 619. (10) For the res ipsa loquitur doctrine to apply it must appear that the instrumentality that caused the injury was within the exclusive control and operated by defendant. The evidence in this case disclosed that the defendant was not in the exclusive possession or control of the elevator, but that the operating and controlling device of said elevator (the improper manipulation of which would have caused this accident) was in the exclusive possession and control of the plaintiff, and that an improper manipulation of said control device would have caused the elevator to overspeed and automatically stop as it did in the present case. Therefore, plaintiff was not entitled to go to the jury on the res ipsa loquitur doctrine and defendant's demurrer to the evidence should have been sustained. Klebe v. Distilling Co., 207 Mo. 480; Mayne v. Ry. Co., 229 S.W. 390; Orb v. Woodward T. Co., 189 S.W. 997; Thompson v. Rd., 243 Mo. 336; Gibbs v. Rd., 148 Mo. App. 475. (11) Merely the showing of an overspeeding and automatic stopping of an elevator, as shown by plaintiff in the present case, an occurrence which happens with elevators which are in perfect working condition and which happens without the intervention of any negligence, is not such an occurrence as gives rise to res ipsa loquitur doctrine, because such an occurrence, in the ordinary course of things, does not happen as the result of negligence of the master. The evidence in this case did not disclose the free, uncontrolled dropping of an elevator, but merely showed the descent of an elevator subject to all controls and safety devices and the automatic stopping thereof. According to common experience such an occurrence does happen without being caused by negligence. Hence, plaintiff did not make a case under the res ipsa loquitur doctrine. Klebe v. Distilling Co., 207 Mo. 480; Removich v. Const. Co., 264 Mo. 43; Pronnecke v. Westliche Post Pub. Co., 291 S.W. 139; Beebe v. Transit Co., 206 Mo. 419; Haynie v. Packing, 126 Mo. App. 88. (12) According to ordinary and usual experience it was not probable or likely that a person in an elevator, which exceeded its speed limit of 450 feet per minute and was automatically stopped by its safety brakes, would sustain any fall or injuries thereby. The equipment of the elevator with such an automatic safety device and its automatic operation was designed to protect any persons in the elevator from any injuries. The brakes did not stop the car abruptly, but gradually, and in such manner as to prevent injury to any passengers. In the present case plaintiff's fall was only due to the fact that the plaintiff had placed a stool behind herself which she backed against and stumbled over, causing her to fall. The defendant could not have anticipated that the plaintiff would have placed this stool in this particular place and would then have backed and fallen over the same and injured herself. Therefore, the cause of the accident being one which could not have been reasonably anticipated by the defendant, said defendant should not be held liable therefor. Nelson v. C. Heinz Stove Co., 8 S.W.2d 918; Fuchs v. City of St. Louis, 167 Mo. 620. (13) The building of one presumption upon another presumption, or one inference upon another inference, constitutes mere speculation and conjecture, and the law will not permit a recovery where an attempt is made to establish liability in this method. State ex rel. Utilities Co. v. Cox, 298 Mo. 427; Hays v. Hogan, 273 Mo. 1; Menteer v. Fruit Co., 240 Mo. 177; Yarnell v. Ry. Co., 113 Mo. 570; Sabol v. Cooperage Co., 313 Mo. 548. (14) In cases where the plaintiff's injury may, with equal probability, have resulted from one of several causes, for only one of which the defendant would be liable, it is incumbent upon the plaintiff to prove that his injury arose from the cause for which the defendant is liable; otherwise he fails to get his case out of the realm of speculation and conjecture and cannot recover. Pippen v. Plummer Construction Co., 187 Mo. App. 360; McGrath v. St. Louis Transit Company, 197 Mo. 97; Smart v. Kansas City, 91 Mo. App. 586; Waldmann v. Skrainka Const. Co., 211 Mo. App. 576; O'Dell v. National Lead Co., 253 S.W. 397; Weber v. Valier Spies Milling Co., 242 S.W. 985; Courter v. Chase Son Mercantile Co., 266 S.W. 340; Pronnecke v. Westliche Post P. Co., 291 S.W. 141; Removich v. Const. Co., 264 Mo. 57; Wilt v. McCallum, 214 Mo. App. 332; Sabol v. Cooperage Co., 313 Mo. 539. (15) Proof of an occurrence causing an injury to a passenger, which gives rise to the presumption of negligence of the carrier under the res ipsa loquitur doctrine, will not raise or continue such a presumption of negligence in an action by a servant against his master. A distinction is always made in elevator cases in applying the res ipsa loquitur doctrine on behalf of the passenger and in cases involving the servant. In the latter case the mere proof of the occurrence is insufficient to make a case unless the occurrence is of such a character that it carries a clear and positive imputation of negligence on its face. The starting, or the overspeeding, of the elevator in the present case and the automatic stopping thereof is not such an occurrence that, according to common experience, carries an imputation of negligence on its face. Therefore, plaintiff was not entitled to recover on the res ipsa loquitur doctrine. Kenyon v. St. Joseph Co., 298 S.W. 246; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43; Courtney v. Gainsborough Studios, 174 N.Y.S. 815. (16) Under the evidence in this case the verdict should be set aside as contrary to the physical facts. Kalman v. Pieper, 149 N.W. 203. (17) The defendant's evidence showed conclusively that it was not guilty of any negligence and that it had performed all duties owing by it to plaintiff. This evidence was not contradicted in any way. Under these circumstances the presumption of negligence did not continue and plaintiff was not entitled to go to the jury on the res ipsa loquitur doctrine, or to have the jury instructed thereon. Fink v. K.C.S. Ry., 167 Mo. 1241 Mo. App. 314; Removich v. Const. Co., 264 Mo. 51; Nelson v. C. Heinz Stove Co., 8 S.W.2d 918; Courtney v. Gainsborough, 174 N.Y.S. 855; Kalman v. Pieper, 149 N.W. 203; Lillis v. Beaver Dam Mills, 124 N.W. 1011; Sheehan v. Boston Co., 220 Mass. 210, 107 N.E. 923. (18) Plaintiff alleged specific negligence in her first petition, subsequently filing an amended petition alleging general negligence. The testimony of plaintiff was that the elevator was out of order and that she knew it was in a defective and dangerous condition; that she informed the building manager of such facts and told him to have it fixed at once, which he promised to do; she continuing to work in reliance on his promise to repair, which was not done. This was evidence of an act of specific negligence, for which defendant would have been liable, if true. However, plaintiff did not instruct the jury on such specific negligence, but the jury was instructed on general negligence. Under such circumstances the plaintiff is estopped from invoking or relying upon the doctrine of res ipsa loquitur. McAnany v. Shipley, 189 Mo. App. 396. (19) The plaintiff would not have sustained a fall and would not have been injured except for the fact that she had placed a stool near the center of the elevator and had moved backwards and stumbled over the same. She testified that she had herself placed the stool behind her; she knew it was behind her and had backed against the same; that she would not have fallen if she had not stumbled over the stool. Under plaintiff's testimony it is clear that the proximate cause of her injury was her backing against and stumbling over the stool which she placed behind her and was not due to the automatic stopping of the elevator. (20) The court erred in permitting plaintiff to make improper use of depositions while questioning certain witnesses. The Supreme Court has prescribed the manner in which a deposition may be used to impeach a witness and the plaintiff did not comply with the law with reference to the proper use of such deposition. Peppers v. St. L. San Fran. Ry. Co., 295 S.W. 757.
Paul Koenig, John S. Marsalek and Kelley, Starke Hassett for respondent.
(1) The court did not err in refusing defendant's peremptory instructions, and in submitting the case to the jury. 1. The evidence that the elevator car, while standing at the thirteenth floor, with the controls in neutral, suddenly dropped and fell a distance of four floors, and then abruptly stopped with a crash and a jolt of such violence as to throw plaintiff forcibly to the floor, was sufficient to take the case to the jury, under the res ipsa loquitur rule. Stroud v. Booth Cold Storage Co., 285 S.W. 165; Eckhardt v. Wagner Electric Mfg. Co., 235 S.W. 117; Ash v. Woodward-Tiernan Printing Co., 199 S.W. 994; Blanton v. Dold, 109 Mo. 64; Ware v. Northwestern Machine Co., 273 S.W. 227; Ferguson v. Fulton Iron Works, 259 S.W. 811; Lowe v. Dyeing Co., 274 S.W. 857; Taul v. Saddlery Co., 229 S.W. 420; Svast v. White, 5 S.W. (2) 668. 2. Plaintiff having made a case for the jury, under the res ipsa loquitur rule, there arose a presumption of negligence against defendant, which was not, as a matter of law, destroyed by defendant's evidence. It was the province of the jury, and not of the trial court, to accept or reject any part or all of defendant's evidence, and to determine its force and effect. Anderson v. Door Co., 182 S.W. 819; Gannon v. Cas. Co., 145 Mo. 502; Bond v. R.R., 288 S.W. 777; Warren v. Tel. Co., 196 S.W. 1030; Whitlow v. R.R., 282 S.W. 525; affd. (Mo. Sup.) 290 S.W. 425; Curry v. R.R., 221 Mo. App. 1; Anderson v. Davis, 314 Mo. 515; Gould v. Railroad, 290 S.W. 135; Zlotnikoff v. Wells, 220 Mo. App. 869. 3. In passing upon a demurrer at the close of all the evidence plaintiff was entitled, in addition to the testimony adduced in her behalf, to the benefit of any favorable testimony or inferences appearing in the entire record. Peters v. Lusk, 200 Mo. App. 372; Maginnis v. R.R., 268 Mo. 667. 4. The fact that some information was available to plaintiff, on the issue of defendant's negligence, does not preclude a recovery by her under the presumptive negligence rule. Price v. St. Ry. Co., 220 Mo. l.c. 456; Stegman v. Motorbus Co., 297 S.W. 189; Klebe v. Distilling Co., 207 Mo. 480. 5. The argument that the case should have been taken from the jury on the theory that the accident might have resulted from a cause other than the master's negligence, is unsound, in a res ipsa loquitur case, for, after a prima-facie case is made, the burden is upon the defendant to show that the happening did not result from its negligence, otherwise the presumption of negligence is conclusive. Porpuolenis v. Const. Co., 279 Mo. 358; Mayne v. Railways Co., 287 Mo. 235; Burns v. Railways Co., 176 Mo. App. 330; Craig v. United Railways Co., 185 S.W. 205; Nagel v. Railways Co., 169 Mo. App. 284. 6. The contention that the plaintiff's failure to remove her stool from the car, or to place it in a different position, was the proximate cause of her injury, lacks any vestige of plausibility. Obviously this was a mere circumstance, not a cause of her injury. Contributory negligence of plaintiff is a defense only when it constitutes the active, moving and efficient cause, absent which the injury would not have occurred. Cabanne v. Car Co., 178 Mo. App. 718; Hires v. Grocer Co., 296 S.W. 408; Dickson v. Railways Co., 124 Mo. 140; Messing v. Drug Co., 18 S.W.2d 408. 7. Where the res ipsa loquitur doctrine applies between master and servants, its incidents and effect are the same as in cases between carrier and passenger. Klebe v. Distilling Co., 207 Mo. 480; Stroud v. Booth Cold Storage Co., 285 S.W. 165. (2) The fact that plaintiff in her first petition alleged specific negligence did not preclude her from filing an amended petition based on the res ipsa loquitur doctrine. 1. Her right to so proceed is clear, and has been affirmed by our appellate courts. Briscoe v. Met. St. Ry. Co., 120 S.W. 1162; Riggs v. Meeker, 8 S.W.2d 1035; Mullery v. Tel. Co., 180 Mo. App. 128. 2. The trial court's ruling on the motion to strike out the amended petition, as constituting a departure, is not complained of in the motion for a new trial, and therefore the matter cannot be reviewed on appeal. Syz v. Union, 18 S.W.2d 441; Grant v. Meinholtz, 289 S.W. 22; Huhn v. Ruprecht, 2 S.W.2d 760; Schuler v. St. Louis Can Co., 18 S.W.2d l.c. 46. (2) The court did not err in giving plaintiff's instruction No. 1. 1. The use of the expression "control cables," instead of "control devices" in the instruction, was a mere verbal inaccuracy, which, in view of the pleadings and evidence, could not have misled the jury. Shortel v. St. Joseph, 104 Mo. l.c. 121; State v. Meals, 184 Mo. l.c. 257-8; Union Packing Co. v. Mertens, 150 Mo. App. l.c. 587; Campbell v. Traction Co., 178 Mo. App. l.c. 529; Doebbeling v. Hall, 310 Mo. 204; Taul v. Saddlery Co., 229 S.W. 420; Millirons v. M.K. T.R. Co., 176 Mo. App. 39; Day v. Dry Goods Co., 114 Mo. App. 479; Secs. 1276 1513, R.S. 1919. 2. The defendant's theory, that plaintiff caused the fall of the elevator, by improper manipulation of the controller, was fully presented to the jury by defendant's instruction No. 3. Tyrer v. Moore, 250 S.W. 920; State ex rel. Jenkins v. Trimble, 291 Mo. 227; State ex rel. v. Cox, 307 Mo. 194. (4) The court did not err in giving plaintiff's instruction No. 2. Authorities, Point 3, supra. (5) The court did not err in permitting plaintiff to question defendant's witness Doran regarding statements contained in the latter's deposition. 1. The methods adopted was correct. Peppers v. Railway Co., 295 S.W. 757. 2. Defendant's counsel adopted the same method in his cross-examination of plaintiff, and therefore is estopped to complain. Kirby v. Coal Co., 127 Mo. App. l.c. 600-1; Pinson v. Jones, 221 S.W. l.c. 86-7; Cox v. Sloan, 158 Mo. l.c. 425-6; Timmerman v. Iron Co., 1 S.W.2d l.c. 796. (6) The damages awarded by the jury were fair and reasonable. 1. The evidence on this subject should be taken in its light most favorable to plaintiff, all conflicts being conclusively settled by the jury's verdict. Manley v. Wells, 292 S.W. 67; Busby v. Tel. Co., 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325; Deland v. Cameron, 112 Mo. App. l.c. 710; Tucker v. Kollias, 16 S.W.2d 649. 2. It is not the province of an appellate court, in any jury case, to weigh conflicting testimony. Gannon v. Gas Co., 145 Mo. 502; Reid v. Ins. Co., 58 Mo. 421; Daniel v. Pryor, 227 S.W. 102; Holzemer v. Ry. Co., 261 Mo. 379. 3. The complaint that plaintiff's counsel fraternized with the jurors, and made unfair statements during the argument, are both unfounded, and should not be considered by this court. Lamport v. Ins. Co., 272 Mo. 19; Roberts v. Lead Co., 95 Mo. App. 581; Glasgow v. Ry. Co., 191 Mo. 347; Boyer v. Ry. Co., 293 S.W. 386. 4. It was the peculiar province of the jury to determine not only the extent of plaintiff's injuries, but also the compensation she was entitled to recover therefor. Hoover v. Ry., 227 S.W. 77; Maloney v. U. Rys. Co., 237 S.W. 509; Sacre v. Ry. Co., 260 S.W. 85. 5. An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Manley v. Wells, supra; Laughlin v. Rys. Co., 275 Mo. 459; Grott v. Shoe Co., 2 S.W.2d 785. 6. The verdict is reasonable in comparison with the damages allowed in similar cases. Garfinkel v. B. Nugent Co., not yet officially reported; Linton v. Lightning Rod Co., 285 S.W. 183; Willis v. Quarries Co., 268 S.W. 102; Magill v. Bank, 250 S.W. l.c. 43; Gilchrist v. Rys. Co., 254 S.W. 161; Adolph v. Brown, 213 Mo. App. 406; Burton v. Grocery Co., 13 S.W.2d 567; Nyberg v. Wells, 14 S.W.2d 529; Unterlachner v. Wells, 296 S.W. 755; Joyce v. Telephone Co., 211 S.W. 900.
This is an action to recover damages for personal injuries sustained by plaintiff while in the employ of defendant, as the operator of a passenger elevator, in the Buder Building, located at the northwest corner of Seventh and Market Streets, in the city of St. Louis.
The trial, with a jury, resulted in a verdict in favor of plaintiff for $5,000, and judgment was given accordingly. Defendant appeals.
Plaintiff received the injuries for which she sues through the falling of the elevator she was operating. The accident occurred on September 4, 1926, at about two-thirty or three o'clock in the afternoon. Plaintiff had been in the employ of defendant as operator of the elevator for about a year prior to her injury. Her duties in connection with the elevator were merely as operator. She had nothing to do with the care or maintenance, and knew nothing of the details of the construction of the elevator, or its mechanism. While she was operating the elevator it fell down the shaft from the thirteenth floor of the building to the ninth floor, where it stopped with a violent and unusual jerk, whereby she received the injuries for which she sues. She testified that just before the car fell it was stationary at the thirteenth floor; that she was waiting for a signal from the elevator starter; that the controller she operated the car with was in the groove of the controller box, which was the proper position to hold the car stationary; that she did not have her hands on the controller at all at the time the car dropped; that the car dropped from the thirteenth to the ninth floor; that she was standing at the time; that it started down so abruptly she did not know what was the matter, but that she felt that the car was falling; that it stopped with such a jolt or jerk it threw her back against the stool she used in the car, and knocked the stool over, that her back, as she fell, struck the stool; that her head hit on the side of the car, and she fell onto the floor of the car; that when she took the car after the lunch hour she noticed that the car was running uneven; that whenever she started it up it would start off slow, and then start off sudden, and when it would stop it would stop with a jolt, shaking all over, and it would stand stationary for an instant and then start again; that this was before the car dropped; that when the car dropped it stopped by itself; that she did not stop it; that before the car dropped she reported its unusual behavior to Mr. Henry Barth, the building manager; that she said to him: "Mr. Barth this elevator is out of order. It is going the same way it did when we fell with the Western Union Telegraph boy. You should report it at once." That Mr. Barth said: "I will;" that she continued to work on the elevator because she thought Mr. Barth was going right away to report its condition to the electrician.
Defendant introduced in evidence plaintiff's deposition, taken some time before the trial, in which she stated her conversation with Mr. Barth, with respect to the unusual behavior of the elevator, as follows: "I said, `Mr. Barth, this elevator is acting like it did before.' I had an accident once before on the same elevator. I said: `You should call the electrician, tell him right away.' He said: `I will.'"
Defendant offered evidence tending to show that there was an ordinary controller in the car for the use of the operator; that by moving the controller the car could be caused to move up or down, or to stop; that the elevator was geared to a speed of four hundred fifty feet per minute; that underneath the car there were brakes which would automatically operate and bring the car to a stop if its speed exceeded four hundred fifty feet per minute.
Thomas J. Doran, called by defendant, testified that he was in charge of the elevators in the building at the time of the accident, and before; that when he heard of the accident he went to the ninth floor and found the car stopped there with the brakes set; that after releasing the brakes he operated and inspected the car and could find nothing wrong with it; that he could not account for the falling of the car except through the careless manipulation of the controlling device by the operator; that if certain functions of the apparatus or mechanism should not be working just right it could cause the car to drop; that the brakes and things not functioning right or dirt getting into the carbons or contacts or something like that, would cause it; that he inspected the elevator daily; that he inspected it on the morning of the accident, and found it working all right and in good condition.
Adam Herman, called by defendant, testified that he was in the employ of defendant, and was on the ninth floor of the building when the car fell; that before the car stopped he heard a crash and then a real hard sudden click, and then the car came to a stop.
Other witnesses testified for defendant that they each had operated the elevator on the day of the accident, and did not notice anything unusual or wrong about its operation.
The court, at the instance of the plaintiff, gave to the jury instructions Nos. 1 and 2, authorizing a verdict for plaintiff upon presumptive negligence arising under the res ipsa loquitur rule. Defendant complains of these instructions here on the ground that the evidence did not warrant the submission of the case under that rule. A like complaint was urged against a like instruction, and ruled against defendant, in Stroud v. Booth Cold Storage Co. (Mo. App.), 285 S.W. 165. In that case, which is almost identical on its facts with the present case, the court said:
"The evidence discloses that the elevator started in an unexpected, unusual, and extraordinary manner, without any apparent reason, and without any fault on plaintiff's part, and, even though this be a master and servant case, we think plaintiff made a prima-facie case under the facts we have above set out entitling him to invoke the rule of res ipsa loquitur. The jury would have a right to infer that defendant was negligent in some respect, and plaintiff would not be required to prove any particular kind of negligence. If plaintiff makes a prima-facie case, and quits at that, then it is up to the defendant to relieve itself of liability, and, if negligence is once shown, or facts from which it may be inferred or presumed, then plaintiff is not required to go further and show that it was some particular kind or character of negligence which caused the injury. It is defendant's duty to show that it was free from negligence."
The opinion in the Stroud case was unsuccessfully attacked in the Supreme Court, by petition for writ of certiorari, as being in conflict with controlling decisions of that court.
Defendant insists that since the defendant produced evidence showing that the elevator machinery was in good condition, and that defendant was free from negligence, plaintiff was not entitled to have the cause submitted to the jury under the res ipsa loquitur rule. There is no support for this insistence either in principle or authority. The presumption of negligence arising under the res ipsa loquitur rule is not a mere rule of procedure. The unusual occurrence from which such presumption arises is evidence of negligence. Such presumption is not put to flight by testimony for defendant showing freedom from negligence on its part. [Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S.W. 777; Murphy v. Tombrink (Mo. App.), 25 S.W.2d 133.]
Defendant insists that the res ipsa loquitur rule is not applicable because the plaintiff testified relative to the unusual behavior of the car before it fell, thus showing that she knew of the defective condition of the elevator mechanism which caused it to fall, so that it cannot be said that the facts concerning the cause of the fall of the car were peculiarly within the knowledge and power of the defendant. We are unable to see why the showing by plaintiff that the elevator manifested evidences of being out of order before the car fell should deprive her of the benefit of the presumption of negligence arising from this unusual occurrence. It would seem that such showing ought to strengthen the presumption rather than destroy it. It is settled law that plaintiff is not precluded, by showing some specific acts of negligence, from relying upon the presumption of negligence arising under the res ipsa loquitur rule. [Price v. Metropolitan Street Ry. Co., 220 Mo. 435, l.c. 456, 119 S.W. 932; Stegman v. Peoples Motorbus Co. (Mo. App.), 297 S.W. 189; Briscoe v. Metropolitan Street Ry. Co. (Mo.), 120 S.W. 1162, l.c. 1164.]
The instructions complained of required the jury to find, as an essential predicate to a verdict for plaintiff on presumptive negligence, that the sudden and unusual descent of the elevator car occurred without the "control cables" being moved, manipulated, or touched by plaintiff. Defendant insists that the instructions were misleading for the reason that the evidence disclosed that there was no cable or cables which could be moved, manipulated, or touched by plaintiff. It is manifest that the term "control cables" was used, instead of "control device or arm," by inadvertence. We do not think, under the facts and circumstances of the case, that this verbal inaccuracy could have misled the jury. The control device or arm used by the operator in controlling the movement of the car was fully described in the evidence, and was constantly referred to during the trial. There was no dispute or issue concerning it. The defendant's evidence tended to show that the sudden dropping of the car could not have happened except by some improper manipulation of the control device or arm by the operator, and it submitted to the jury, by its instruction No. 3, in clear and definite terms, its theory that if the plaintiff by improper manipulation of the "control device or arm" caused the car to fall, she was not entitled to recover. The jury could hardly have failed to understand that the reference in plaintiff's instructions was to the control device or arm described in the evidence and referred to in defendant's instruction.
Defendant makes the further point that the falling of the elevator was not the proximate cause of plaintiff's injury, but that the proximate cause was the presence of the stool over which plaintiff fell, and that plaintiff was guilty of contributory negligence as a matter of law in placing the stool behind her in a position where she was likely to fall over it. In other words, as we understand the defendant's contention, it is that plaintiff should have anticipated that the elevator would fall, and ought to have so placed the stool that she would not fall over it when the elevator fell. Obviously, there is no substance in this contention. The presence of the stool was merely an incident in the causal connection between the defendant's negligence and the plaintiff's injury, contributing merely in a remote way to the injury. It affords no evidence of contributory negligence on the part of the plaintiff.
Defendant also assigns error on the refusal of its instruction in the nature of a demurrer to the evidence. The grounds for this assignment are, (1) that plaintiff did not make out a submissible case under the res ipsa loquitur rule, and (2) that the evidence shows contributory negligence on the part of plaintiff as a matter of law. It is manifest from what we have already said that the instruction was properly refused.
Defendant complains of error on the part of the court in permitting plaintiff in questioning one of its witnesses, to make improper use of the witness' deposition. We are satisfied that no improper use was made of the deposition. Aside from this, the only objection made to the use of the deposition in the court below was this: "I object to that manner and use of this deposition." Obviously, this objection was too general to convict the court of error in its ruling thereon.
Defendant complains that the verdict is excessive. Plaintiff testified that she was in a perfect state of health and had never had any illness prior to the accident, except occasional colds; that after the accident she suffered intense pain all over her body, most extremely in the lower parts; that she was highly nervous and could not sleep at night; that she had extreme pain in the lower part of her stomach, and lower organs of the body and back; that the pains in her stomach were so severe that at times after she had called her doctor during the day she would be compelled to call him back later on in the night to give her medicine to ease the pain; that she had awfully severe pains in her female organs; that she was rendered extremely excitable and could not sleep; that she called Dr. Meyer to treat her and was in bed about a month under his care; that during that time he was treating her back, stomach and female organs, and her nervous condition; that she was under Dr. Meyer's care for a year or more; that she was suffering from a retroflexion of the uterus; that at the time of the trial, which occurred three years after the accident, she still suffered pain in her back and stomach, and suffered terribly with her female organs during her monthly periods, which were irregular, profuse and protracted; that she was able to sleep but very little; that at times she got around four or five hours sleep nightly, but that she was as tired after she got up as she was before she went to bed; that the least little thing excited her; that oftentimes she would forget where she put things, and things like that; that she would forget what she went to the store for, or something like that; that in crossing the streets the automobiles, though they were far away from her, would make her terribly nervous, and she would sometimes think that they were right upon her; that she suffered from terrible headaches; that these headaches were of two or three days' duration; that about a year previous to the trial she had attempted to work; that she took a position at a clothing store, but that due to her condition she had to lay off a great deal, and her employer got tired of it, and she lost her position; that the headaches and nervous trouble, the difficulty in her menstrual periods, and the pain in her female organs, stomach, back and abdomen, which she suffered at times up to the time of the trial, were the same kind of pains that she had immediately after the accident; that the lower part of her back was injured in the accident; that she judged her kidneys were injured; that she did not know positively; that she found that she could not sit any length of time, or stand up, or anything like that.
Dr. Harry H. Meyer, called by the plaintiff, testified that he was called to treat plaintiff shortly after the accident; that he found that she had bruises on her right hip which pretty well covered the entire hip; that on examination he found extreme soreness over the abdominal cavity and pelvic organs; that she was suffering from nervous shock and inability to sleep at night, and was addicted to intense headaches; that upon making a pelvic examination he found the uterus was enlarged very much, and the ovaries and tubes swollen; that the uterus was very sensitive and retroflected, that is, turned backward and lying against the rectum; that both were very sore; that the soreness was so extreme that he could hardly examine her properly; that he took the precaution to test the discharge that was present, which he thought might possibly contain gonorrheal germs, but that he found that it did not; that he found the discharge negative, but very foul; that he made sixteen calls to the plaintiff's home from the time of the accident to October 3, 1926, and always found her in bed; that she stated that she could not do otherwise than remain in bed; that he treated her condition, prescribed medicine to ease her pain, and sedatives to quiet her and induce sleep at night; that from October 8th, to December 17, 1926, she made numerous calls at his office; that twice during that time he was called to her home on account of attacks of acute pain which she suffered in her female organs and abdomen; that she remained in bed most of the time until the end of the year, in accordance with his instructions; that by treatment and exercise the malposition of the uterus was corrected, the congestion relieved, and a general condition approaching normal finally resulted; that the abnormal conditions from which she suffered could have been caused by trauma or accident; that a shock of the nervous system, produced by trauma, usually takes quite some time before relief comes, but that it usually comes in course of time; that a sudden jerk, jar or blow could produce an injury to the soft tissues of the back, and of the abdomen and intestines, which it would be impossible for the physician to discover by objective symptoms; that plaintiff complained about the lower end of her breast bone being sensitive and causing her considerable pain, but that he was unable to find any fracture or sprain of the bone in that region; that on December 22, 1927, the last visit plaintiff made to his office, he could find no cause for the pain which plaintiff still complained of in her pelvic organs, outside of some slight inflammation; that she still complained of irregular painful menstruation, and abdominal pains; that they could have been produced by different causes, and could have been the result of the injury.
Dr. M.W. Hoge, called by plaintiff, testified that in May, 1929, a few days before the trial, he examined plaintiff, principally with reference to her nervous condition; that he had her to first stand with her feet together and her eyes closed, and he noticed that she was distinctly unsteady in that position, swaying from side to side; that he then had her slip off her shoes so as to stand flat-footed on the floor and attempt to stand on one foot, with her eyes open; that she was very decidedly unsteady, and would sway and almost fall in making that test; that there was some tremor in the tongue when she put it out, and of her hands when she held them out; that this tremor was not extreme, but that it was sufficient to be observed; that her deep reflexes were all very much over active, indicating a nervous disturbance; that there was evidence of tenderness and withdrawal from pressure in manipulating and pressing on the scalp; that there was the same evidence of tenderness in pressure over the spine between the shoulder blades; that there was tenderness on pressure over the large nerves of her arms; that there was tenderness on pressure over both sciatic nerves; that he also observed in taking her history that she was often very slow in recalling details about her history as to the date when a certain thing happened; that things which should be of importance to her she was slow to remember, and other things less important she seemed to have no trouble in remembering; that in his opinion these conditions could have been caused by accident or trauma; that such conditions do frequently result from a person being in an accident; that he diagnosed her condition as traumatic neurasthenia, a functional disorder of the nervous system, and as such theoretically recoverable; that some patients recover from this disorder and others do not; that it was his judgment, however, that in a case of several years standing, without any recent material improvement, the recovery, if it occurred, would probably be a very slow and gradual process.
In view of this evidence we cannot say that the verdict in excessive.
The commissioner recommends that the judgment of the circuit court be affirmed.
The foregoing opinion by SUTTON, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed. Haid, P.J., and Becker and Nipper, JJ., concur.
REPORTER'S NOTE: — Writ of certiorari in the foregoing case was denied by the Supreme Court, November 25, 1930.