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tablish tbat it was unfit for use. It might which were necessary to be done, without pertaps have been more perfect if it had the assistance of a helper, and without inbad books and spikes, but this improvement curring any risk of injury. The plaintiff Tas not absolutely essential to relieving the therefore took the risk of doing the work defendants from liability. It was enough with the appliances and help that were furthat it was reasonably safe and suitable nished, and cannot now be heard to charge Tithin the rule cited, and under such cir- negligence or failure of duty on the part cumstances the action will not lie." This of the master. esse pas cited and followed in Cahill v. The second negligence assigned is that the Fiton, 106 N. Y., loc. cit. 518, 13 N. E. 341, ladder had no prongs to prevent it from slipwhere it was said: “A ladder, like a spade ping while resting on the granitoid floor of boe, is an implement of simple structure, the basement. There is no evidence in this Fresecting no complicated question of power, case that the ladder was furnished by the soton, or construction, and intelligible in defendant. The plaintiff says he found it in all its parts to the dullest intellect. No rea- the building lying with or close to the mason can be perceived why the plaintiff terials which were to be used in the construcbrutght into daily contact with the tool used tion of the elevator, but that he did not ty tim, as he was, should not be held charge- know who put it there, or to whom it beible with the defendants, with knowledge of longed. The plaintiff therefore has failed Deir imperfections."

absolutely to show that the ladder was one Wood r. Tileston, etc., Co. (Mass.) 65 N. of the appliances which the defendant furE $10, was an action for damages received nished. But assuming that the ladder was by the plaintiff while using a ladder, by rea- furnished by the defendant, the failure of son of the slipping thereof. The ladder was the defendant to provide prongs or safety sed to reach a platform about eight feet hooks to keep the ladder from slipping is not above the floor. The ends of the ladder were suficient to make the defendant liable in so eat that they rested horizontally on the this case. The ladder was a very simple door, and had a tendency to slip. At the appliance one that is familiar to every foot of the ladder the cleat split and the grown man. Its liability to slip when not adde slipped, causing the plaintiff to fall. resting firmly or securely is a matter known There was a verdict for the defendant, and to all men. Yet ladders are constantly used, the plaintiff appealed, with the result that and very few of them have prongs or safety the fodgment was affirmed; the court hold- hooks thereon. There is a total absence of 'ng that the risk was incident to the manner any evidence in this case showing that the of doing the business as the defendant con- ladder furnished was not a reasonably safe bacted it, and that the plaintiff assumed appliance, and could not have been safely the risk when he entered the employment. used for the purposes to which it was applied Vany other cases illustrative of the princi- or intended to be applied. There is nothing pe bere involved might be cited, but, after in the case which in any manner made it al, there is not so much diversity of opinion obligatory upon the plaintiff to use the ladu to the underlying principles as there is The elevator was only to extend from us to the application of the legal principles the basement to the first floor, a distance of to the facts in judgment in the particular 10 feet. The guidepost was to rest in the cases.

hole the plaintiff had cut in the granitoid It only remains to apply the rules of law flooring, and necessarily was to extend above to the facts of this case.

the first floor. The plaintiff could have The first negligence assigned is that the reached the first floor from the basement by defendant failed to furnish the plaintiff with means of the staircase in process of construc1 belper. Of this it is only necessary to say tion, There was therefore no necessity for hat at the time the plaintiff entered the the plaintiff to use the ladder at all. But service of the defendant, and undertook to do even if this be not true, no reason appears the work in this case, he was expressly in- why the plaintiff could not or did not fasten formed that he could not have a helper until the ladder so as to prevent it from slipping soon, and was told to go on with the work before ascending it. This he could have done until that time, when a helper would be fur- by attaching it to the floor of the first story, ribed to help do the heavier part of the if it was not possible to arrange it at the Tork. The manner of doing the work was bottom to prevent it slipping by reason of the left entirely to the plaintiff, who was an flooring being made of granitoid. There is Empert in that department of work. He was no evidence in the case tending to show that not required to do anything that would or the master directed or intended that the soald result in injury. He was left free to plaintiff should use the ladder, nor that the to the work in any manner he saw it, with master prescribed or limited the manner of the instrumentality and appliances and as

its use.

There is no claim that the ladder éstance which were furnished him at the itself was not otherwise perfectly sound and toe be entered the employment. He knew safe. be was to have no helper until afternoon. Reduced to its last analysis, the plaintiff's Tbere were, concededly, other parts of the case rests upon the proposition that a ladder až which he could have safely done, and is an unsafe appliance to be used in going

der.

from the basement to the first story of the there was a written contract covering the building, unless it has prongs or safety hooks items of the account. The court overruled attached thereto to keep it from slipping. the motion, and defendant has made such acNo case supporting such a proposition has tion the principal ground of his appeal. been cited by counsel, and none has fallen When a suit is upon a written instrument, under the observation of the court. On the the statute (section 3852, Rev. St. 1899) recontrary, among the cases hereinbefore cited quii that it shall be filed with the justice. there are several where the claim here made But if the subject-matter is such that it may was distinctly denied by the court; and in be stated in an account, the plaintiff need. other cases a ladder without prongs or safety not sue on the contract, and may state his hooks has been held to be a reasonably safe case as an account, the contract being eviappliance for the master to furnish the serv- dence in his behalf. Kingsland & Ferguson ant for such uses as ladders are generally Mfg. Co. V. St. Louis Malleable Iron Co., applied to. The fact that the ladder rested 29 Mo. App. 526. If there is a verbal conupon the granitoid floor of the basement tract, the action may be stated in the form could not render it any more insecure than of an account sufficiently definite to apprise if it had rested on a plank floor. The lia- the opposite party of the matter in controbility to slip would be equally as great in the versy and to bar another action. The acone case as in the other.

tion need not be brought specifically on the The judgment of the circuit court was contract. Barham v. Colp, 87 Mo. App. 152, clearly right, and it is therefore affirmed. 156. The statute only requires a written inAll concur.

strument to be filed when the action is upon such instrument. If the cause of action is such that it may be maintained as on an ac

count, it may be so brought. In this case STANDARD SCALE & FOUNDRY CO. V.

the account is a full statement of the items KANSAS CITY FURNACE CO.

which go to make it up, and a judgment (Kansas City Court of Appeals. Missouri. thereon would undoubtedly bar any other acJune 5, 1905.)

tion involving such items. JUSTICES OF THE PEACE - PLEADING - FILING

We are of the opinion that the instructions OF WRITTEN INSTRUMENTS.

for plaintiff given over defendant's objections Rev. St. 1899, § 3852, requiring a written

were correct. There is no good ground of obinstrument, when made the basis of suit before

jection to the third one on the subject of dea justice, to be filed with the justice, does not require the action to be brought specifically on

fendant's counterclaim. Certainly, if the hysuch instrument, but, if the subject matter of pothesis therein submitted was believed, the the action is such that it may be stated in an

finding on that subject should be as directed. account, plaintiff may state his case in the form of an account, and need not sue on the con

The judgment is affirmed. All concur. tract, and may offer the contract in evidence.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, 88 307, 335.) Appeal from Circuit Court, Jackson Coun

HENSLER V. STIX et al. ty; J. H. Slover, Judge.

(St. Louis Court of Appeals. Missouri. May Action by the Standard Scale & Foundry

16, 1905.) Company against the Kansas City Furnace 1. CARRIERS-ELEVATORS-INJURY TO PASSENCompany. From a judgment for plaintiff,

GERS-CARE REQUIRED. rendered on appeal from a justice, defend

Persons operating elevators for public use

in stores are common carriers of passengers, ant appeals. Affirmed.

and bound to exercise the highest practicable

care used by prudent men in operating elevators Wm. T. Jamison, for appellant. Karnes, to prevent injury to passengers. New & Krauthoff and Jno. N. Davis, for re- [Ed. Note.-For cases in point, see vol. 9, spondent.

Cent. Dig. Carriers, 88 966, 1092, 1194.)
2. SAME-NEGLIGENCE.

In an action for injuries to a passenger by ELLISON, J. This action was brought

the operation of an elevator, the court should before a justice of the peace on an itemized have charged that defendants were liable for account. The defendant filed before the slight negligence on the part of their employé

in charge of the elevator. justice an itemized counterclaim in the shape

[Ed. Note.-For cases in point, see vol. 9, of a written answer, in which credits are

Cent. Dig. Carriers, $$ 1092, 1194, 1333.) set up by which, in at least one item, a con

3. SAME-ACTION FOR INJURY-PLEADING. tract between the parties is referred to.

Where, in an action for injuries to an eleFor these items defendant claims that he vator passenger, the instructions did not au. should have credit, though they sum up more

thorize a verdict for plaintiff on a finding that than the balance claimed by plaintiff. No

the elevator was carelessly started from the

landing, the failure of an allegation in the petiobjection appears to the statement of plain- tion that the operator started the car before tiff's cause of action being stated in the form plaintiff's dress was released from the door to of an account until at the close of his evi

allege that the car was negligently started was

immaterial. dence on appeal in the circuit court, when

4. SAME-DIRECTION OF VERDICT. defendant moved to dismiss for the reason

Where there was evidence that defendants' that it appeared by plaintiff's testimony that employé carelessly closed the door of an ele

Action by Mary Hensler against Charles A. Stix and others. From a judgment for plaintiff, defendants appeal. Reversed.

Seddon & Holland, for appellants. J. E. Egger and J. E. Hainer, for respondent.

nator on plaintiff's dress, and at the same moDet started the elevator, and negligence in test raspect was well pleaded, it was not error to refuse to direct a verdict for defendants, in that there was a total failure of proof, though soce of the grounds of negligence alleged were A prored. 5 SAXE-NEGLIGENCE-QUESTION FOR JURY.

Defendants' elevator operator shut the eleTabor door on plaintiff's dress while she was staning in the car, and lowered the elevator at ise same instant. The operator, seeing plainis peril, suddenly reversed the lever, which prited in the car suddenly turning upward, casez plaintiff's injuries; the operator claiming that, unless he acted as he did, the descent

the elevator could not have been stopped

ky enough to save plaintiff from harm. Eeld, that whether the operator was negligent ID anting the elevator after he saw plaintiff's d2-4er tas for the jury. 6 SAVE-PROXIMATE CAUSE OF INJURY.

The movement of the elevator upward, as

tinguished from the negligence of the elevator Operator in moving the elevator when he knew or should have known that plaintiff's dress was cezht in the door, was not the proximate cause of ibe accident, as a matter of law. 7. SAVE-ACTION FOR INJURY-INSTRUCTIONS.

In an action for injuries to an elevator parenger, an instruction declaring that negligezse on plaintiff's part, directly contributing to the injury, would not bar her right to recover, if defendants' agent or servant, after discovering plaintif's danger, might, by the exercise of ordimy care, have prevented the injury to her, was BITCdeons, as misleading, and as requiring of the Gazios no more than ordinary care to save saistiff after he discovered her peril. & SAVE.

The instruction was also objectionable as Fridating defendants' liability in case the ele2:or operator was negligent in not sooner disOrering plaintiff's peril. 2. SAYF.-MANAGEMENT OF ELEVATOR-NEGLIGESCE.

Plaintiff's dress was caught in the door of celerator as the door was closed after she entered it, and, the elevator being caused to depod immediately thereafter, the operator dis

ered plaintiff's peril, and reversed the eletator; and, before it could be stopped, plaintiff

s injured by being caught between the eleTutor foor and the ceiling. Held, that as any Dez grace on plaintiff's part must have occurrad if at all, before the elevator began to decd. and the operator being charged with the er to exercise unusual vigilance for plaintiff's afety, if by the exercise of such vigilance he and have seen that plaintiff's dress was caught entire to prevent injury to her, defendants were liable. 10. SAHEINSTRUCTIONS.

An instruction that defendants were lia. if plaintiff's injury was caused by “any

re" on their part to exercise care and preTon in the management of the elevator, as tinguished from a failure of duty "shown by e proof" was error. il SAVE-LIABILITY FOR INJURY TO PASSENGER-ACCORD AND SATISFACTION-INFANCY.

Where plaintiff was injured by the operatop of an elevator in which she was being Sansported from one floor to another in defend

3 store, her failure to reply to a letter prosing that defendants would continue to pay far ber board and attention at a hospital, if she sored them she would make no additional deod on account of her injury, did not constite an accord and satisfaction; she being a Door antil after she left the hospital.

Appeal from St. Louis Circuit Court; WarTie Hough, Judge.

Statement of the Case. GOODE, J. The defendants are a firm of retail merchants in the city of St. Louis. Plaintiff was injured in an elevator accident while in their store as a customer, and on an elevator used to carry passengers to the different stories of the building. The acci. dent occurred as the elevator descended from one of the floors. The evidence is contradictory as to which one, nor is the fact material. The elevator runs in a shaft. Each floor of the building has a sliding door attached to the floor and detached from the elevator, but opening into the shaft, and affording an entrance to and an exit from the elevator car. The car itself has an opening or doorway in the south side about three feet wide. When the car stops at a floor its doorway is immediately opposite the sliding door, which is pushed back for passengers to go in and out of the car, and closed before the car starts again. The testimony for the plaintiff is that just as she entered the elevator the youth who operated it told her to step back from the door, but instantaneously, and before she had time to step back, closed the door and started the elevator downward. It immediately appeared that her dress was fastened at the floor they were leaving, for when the car had descended about four feet the dress stretched taut, and plaintiff was lifted from the floor of the car and suspended between the floor and the top. The car was about seven feet high, and, if it had descended three feet farther, plaintiff would have been struck by the roof of it, and in all probability killed or seriously injured. The operator discerned her peril, and reversed the movement of the car, thereby causing it to shoot upward. The sudden upward movement threw the plaintiff's left leg through the open doorway of the car, and it was caught between the floor of the car and the ceiling beneath the story it approached in rising—the same story it had left. The elevator operator gave this account of the accident: “When I descended about four feet I noticed Miss Hensler was caught, and quickly reversed the elevator on the 'up,' and the elevator- It was too short a distance for the elevator to go slow, and it went up quickly, and her leg was caught between the under portion of the floor and the upper portion of the elevator.

Why, I could never have stopped the elevator in time to save her from instant death. I couldn't stop the elevator in time. So there was only one way, and that was to quickly reverse the elevator.

Well, after I left the third floor, I descended about the distance of four feet, and I noticed that Miss Hensler's dress was caught, and I

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quickly reversed the lever on the 'up,' and tude, we should not have done as much as in going up the jolt was too quick. It was we have done. too great for the engine of the elevator, and "At any rate, if you have any such plan it shot up a little swifter than it usually for the future, we wish you would let us ought to if you would run the elevator right; know at once, so that we may discontinue and, in going up, it threw her leg out, and the expenses of hospital and physician right her leg was caught between the upper por- away. We are confident that you will deal tion-well, you can say the portion of the with us in this matter in perfect frankness. ceiling and the upper portion of the elevator In other words, if you have no idea of em-and it was drawed through. It was draw- ploying a lawyer and making a further deed through, and when we got to the third mand upon us, we are willing to continue floor, why, her leg was out by that time.” your treatment until you get well. If, how. The resultant injury was a compound frac- ever, you have in mind the bringing of a ture of the limb below the knee. Defendants claim against us later, we want to stop all sent plaintiff to a hospital, and paid for her expenses now. board and treatment until she was dischar- "Please advise us at once and oblige, ged. Some of the testimony tends to prove “Very truly yours, the el or was at the fourth floor, instead

"Stix, Baer & Fuller, of the second, as plaintiff swore, and that,

"Per O. Stix." in the teeth of warnings, she persisted in These instructions were given for the standing close to the open entrance, in con- plaintiff over defendants' objection: sequence of which imprudence her dress "(1) The court instructs the jury that it caught at the third floor.

was the duty of the defendants and their Negligence is charged against defendants agents and servants, in the management of in the petition as follows: "The plaintiff their elevator, to exercise reasonable care states that the defendants, unmindful of and precaution to prevent any injury to pertheir duties in the premises, failed to carry sons in or upon said elevator, and any failplaintiff well and safely between said floors ure on their part to exercise such care and heretofore ment ned, in this: that, as plain- | precaution would be such gligence as to tiff was standing in said elevator, defend- make defendants liable for the injuries to ants' agent, without fault on plaintiff's part, plaintiff resulting from such negligence, uncarelessly and negligently suddenly closed less the jury believes that the plaintiff's the door of said elevator so as to catch said contributory negligence was the proximate plaintiff's dress in the door and entangle it cause of the accident; and, in passing upon in the wheels of the elevator, which said the question of negligence of the defendants' wheels were carelessly and negligently ex- agents and servants, and the contributory posed and uncovered; and defendants' agent negligence of plaintiff, you should take into then started said elevator before said dress consideration all the facts and circumstances was disentangled from said door and wheels, as proved by the evidence to bave existed whereby plaintiff was thrown with great at the time when and the place where the force and violence against the side and top injuries occurred, and you should give to of said elevator, whereby plaintiff was man- each fact and circumstance, and to the tesgled, bruised, and greatly injured, her leg | timony of each witness, such weight only as was broken," etc.

you may deem such fact, circumstance, or The following letter was offered by de- testimony entitled to, in connection with all fendants and excluded:

the evidence in the case. "St. Louis, February 20, 1901. Miss Mary "(2) If the Jury finds that the plaintiff Hensler, Care of St. Luke's Hospital, City- was injured by the negligent or careless closDear Miss Hensler: Referring to the acci- ing of the elevator door by defendants' dent that befell you at our plant some time servant, or by negligence or carelessness on ago, we beg to state that as a matter of the part of the defendants' servant in regenerosity we have for some time been pay- versing and returning the elevator after the ing the expenses of your room, board, nurses plaintiff's dress was found to be caught, then and physician. These expenses we can as- the plaintiff is entitled to recover. sure you are very considerable. We have "(3) If the jury finds that the contributory done this with pleasure and are willing to negligence of the plaintiff was the proximate contribute to pay all these expenses until cause of the catching of her dress in the ele. you are well as a matter of favor, provided vator door, but finds that the injury to her that your attitude toward us is friendly. person might have been prevented by a careWe have received intimations, however, of ful reversal and return of the elevator by the late that look as though there is a prospect servant of the defendants after the dress of your ultimately making

claim was found to be caught, then the plaintiff is against us through an attorney. Of course, entitled to recover. if this is your intention, we shall expect you "(4) By the term 'negligence,' as used in to inform us at once, so that we can discon- these instructions, is meant the want of that tinue the large expense which we

are at degree of care that any ordinarily prudent present put to. Had we thought that you person would have exercised under the same would possibly bave maintained this atti- or similar circumstances."

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"By the term 'contributory negligence', The latter proposition was declared by the is meant any negligence on the part of the trial court, but the defendants were not held pisiatiff directly contributing to her injury; responsible by the instructions for slight negbor such negligence on her part, if the jury | ligence on the part of their employé in charge finds the same to have existed, will not bar of the elevator, as they should have been. ber right to recover, if defendants' agent or This error affords defendants no ground of serrant, after discovering the danger in complaint, but is noticed because the case which plaintiff was placed by her negligence, may be retried. might bave, by the exercise of ordinary care, 2. The petition contains an averment that prevented the injury to plaintiff.”

the operator started the car before plaintiff's The following instructions were given for dress was released. That averment is said defendants:

to be no statement of an independent act of *5) The court instructs the jury that there negligence or separate cause of action, bes do evidence of any negligence on the part cause it is not charged that the elevator was of the defendants in connection with the started negligently. Neither the word “negequipment of the elevator.

ligently," nor any of similar import, is used "16) The court instructs the jury that by as descriptive of the act of starting. Neverthe words ordinary care,' as used in these theless a cause of action might be founded on instructions, is meant such care as a person the starting of the elevator when the operof ordinary prudence would exercise under ator knew, or by using due care could have the same or similar circumstances.

known, plaintiff's dress was caught in the *8) The court instructs the jury that the door. The operator stood right by the door, burden of proof is upon the plaintiff to prove and had a good chance to observe that her täat the injuries complained of by plaintiff dress was caught. It was bis duty to use were due to negligence on the part of the de- great care to bave the passengers in safe pofendants, and the plaintiff, in order to recov- sitions before he moved the elevator. But s, must prove this by the preponderance or the instructions authorized no verdict for greater weight of the evidence.”

the plaintiff on a finding that the elevator These instructions were requested by de- was carelessly started from the lan fendants and refused:

Therefore any fault in the allegation about "(a) The court instructs the jury that, in starting is immaterial. If negligence in that order to find a verdict in this case, each and regard is to be relied on as a separate ground Tery one of your number must agree to said of recovery, the averment about it should be Terdict.

completed by the addition of the fact that the **b) The court instructs the Jury that if

operator knew or ought to have known her you believe from the evidence that the plain- dress was caught when he started the matt was guilty of a failure to exercise ordi- chine. mary care, which directly contributed to cause

3. Plaintiff's pleading does not fit the facts ber injury, then you will find for the defend- disclosed by the evidence in all respects. ants.

The negligent acts mentioned in the petition "(c) The court instructs the jury that the as the cause of the casualty are, first, closing piaintiff is not entitled to recover in this case the door on plaintiff's dress so that it became unless you find from the evidence, first, that entangled in the wheels of the elevator; secthe man in charge of the elevator of defend- ond, carelessly leaving the wheels exposed; 18ts was guilty of negligence that contribut- and, third, starting while plaintiff's dress d directly to plaintiff's injuries; and, sec- was fastened. The petition avers that by end, that the plaintiff herself was not guilty those acts plaintiff was thrown against the of any negligence that directly contributed to top and side of the elevator and injured. atse any injuries complained of.”

Plaintiff was not injured in that way, but, Terdict and judgment were entered for the as all the evidence shows, by her leg getting plaintiff, and defendants, who had saved ex.

caught between the floor of the elevator and feptions to all adverse rulings, appealed. the edge of the ceiling of one of the stories

of the building. Neither did exposed wheels Opinion.

have anything to do with the casualty, nor 1. Persons who operate elevators for the was there any proof that the wheels of the ore of the general public, in stores and other machinery were exposed. Counsel for dedinzs, are treated as common carriers of fendants insist the accident was due proxipassengers, and held to the exercise of the

mately to reversing the elevator, thereby bigbest practicable care, and such as prudent causing it to ascend again, and not to its Den use in operating elevators, to prevent in- descent, or exposed wheels, or closing the ay to passengers. Lee v. Knapp, 155 Mo. door on plaintiff's dress; further, that the 10. 56 S. W. 458; Becker v. Lincoln, etc., petition says nothing about the reversal of 0. 174 Mo. 246, 73 S. W. 581; Luckel v. the movement of the elevator, and therefore Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035. plaintiff could not recover on her pleading, is the duty of a passenger on an elevator, which specified only acts of negligence that tad bence it was plaintiff's duty, to use ordi- in no way contributed to the accident. The

care to keep from getting hurt. Becker conclusion is deduced that the court should Case, 174 Mo., loc. cit. 250, 76 S. W. 1035. have directed a verdict for the defendants.

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