tablish that it was unfit for use. It might pertaps have been more perfect if it had had books and spikes, but this improvement was not absolutely essential to relieving the defendants from liability. It was enough that it was reasonably safe and suitable within the rule cited, and under such circumstances the action will not lie." This ease was cited and followed in Cahill v. Hilton, 106 N. Y., loc. cit. 518, 13 N. E. 341, where it was said: "A ladder, like a spade er boe, is an implement of simple structure, presenting no complicated question of power, motion, or construction, and intelligible in all its parts to the dullest intellect. No reason can be perceived why the plaintiff brought into daily contact with the tool used ty him, as he was, should not be held chargeable with the defendants, with knowledge of their imperfections."

Wood v. Tileston, etc., Co. (Mass.) 65 N. E 510, was an action for damages received by the plaintiff while using a ladder, by reason of the slipping thereof. The ladder was ased to reach a platform about eight feet above the floor. The ends of the ladder were so cut that they rested horizontally on the foor, and had a tendency to slip. At the foot of the ladder the cleat split and the adder slipped, causing the plaintiff to fall. There was a verdict for the defendant, and the plaintiff appealed, with the result that the judgment was affirmed; the court holding that the risk was incident to the manner of doing the business as the defendant conducted it, and that the plaintiff assumed the risk when he entered the employment. Many other cases illustrative of the principle here involved might be cited, but, after all, there is not so much diversity of opinion 28 to the underlying principles as there is as to the application of the legal principles to the facts in judgment in the particular

cases.

The first negligence assigned is that the defendant failed to furnish the plaintiff with belper. Of this it is only necessary to say that at the time the plaintiff entered the service of the defendant, and undertook to do the work in this case, he was expressly informed that he could not have a helper until boon, and was told to go on with the work until that time, when a helper would be furnished to help do the heavier part of the work. The manner of doing the work was left entirely to the plaintiff, who was an expert in that department of work.

He was not required to do anything that would or could result in injury. He was left free to do the work in any manner he saw fit, with the instrumentality and appliances and asdistance which were furnished him at the time he entered the employment. He knew he was to have no helper until afternoon. There were, concededly, other parts of the work which he could have safely done, and

which were necessary to be done, without the assistance of a helper, and without incurring any risk of injury. The plaintiff therefore took the risk of doing the work with the appliances and help that were furnished, and cannot now be heard to charge negligence or failure of duty on the part of the master.

The second negligence assigned is that the ladder had no prongs to prevent it from slipping while resting on the granitoid floor of the basement. There is no evidence in this case that the ladder was furnished by the defendant. The plaintiff says he found it in the building lying with or close to the materials which were to be used in the construction of the elevator, but that he did not know who put it there, or to whom it belonged. The plaintiff therefore has failed absolutely to show that the ladder was one of the appliances which the defendant furnished. But assuming that the ladder was furnished by the defendant, the failure of the defendant to provide prongs or safety hooks to keep the ladder from slipping is not sufficient to make the defendant liable in this case. The ladder was a very simple appliance one that is familiar to every grown man. Its liability to slip when not resting firmly or securely is a matter known to all men. Yet ladders are constantly used, and very few of them have prongs or safety hooks thereon. There is a total absence of any evidence in this case showing that the ladder furnished was not a reasonably safe appliance, and could not have been safely used for the purposes to which it was applied or intended to be applied. There is nothing in the case which in any manner made it obligatory upon the plaintiff to use the ladder. The elevator was only to extend from the basement to the first floor, a distance of 10 feet. The guidepost was to rest in the hole the plaintiff had cut in the granitoid flooring, and necessarily was to extend above the first floor. The plaintiff could have reached the first floor from the basement by means of the staircase in process of construction. There was therefore no necessity for the plaintiff to use the ladder at all. even if this be not true, no reason appears why the plaintiff could not or did not fasten the ladder so as to prevent it from slipping before ascending it. This he could have done by attaching it to the floor of the first story, if it was not possible to arrange it at the bottom to prevent it slipping by reason of the flooring being made of granitoid. There is no evidence in the case tending to show that the master directed or intended that the plaintiff should use the ladder, nor that the master prescribed or limited the manner of its use. There is no claim that the ladder itself was not otherwise perfectly sound and safe.

But

Reduced to its last analysis, the plaintiff's case rests upon the proposition that a ladder is an unsafe appliance to be used in going

from the basement to the first story of the building, unless it has prongs or safety hooks attached thereto to keep it from slipping. No case supporting such a proposition has been cited by counsel, and none has fallen under the observation of the court. On the contrary, among the cases hereinbefore cited there are several where the claim here made was distinctly denied by the court; and in other cases a ladder without prongs or safety hooks has been held to be a reasonably safe appliance for the master to furnish the servant for such uses as ladders are generally applied to. The fact that the ladder rested upon the granitoid floor of the basement could not render it any more insecure than if it had rested on a plank floor. The liability to slip would be equally as great in the one case as in the other.

The judgment of the circuit court was clearly right, and it is therefore affirmed. All concur.

Rev. St. 1899, § 3852, requiring a written instrument, when made the basis of suit before a justice, to be filed with the justice, does not require the action to be brought specifically on such instrument, but, if the subject-matter of the action is such that it may be stated in an account, plaintiff may state his case in the form of an account, and need not sue on the contract, and may offer the contract in evidence.

[Ed. Note. For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, §§ 307, 335.] Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by the Standard Scale & Foundry Company against the Kansas City Furnace Company. From a judgment for plaintiff, rendered on appeal from a justice, defendant appeals. Affirmed.

Wm. T. Jamison, for appellant. Karnes, New & Krauthoff and Jno. N. Davis, for respondent.

ELLISON, J.

This action was brought before a justice of the peace on an itemized account. The defendant filed before the justice an itemized counterclaim in the shape of a written answer, in which credits are set up by which, in at least one item, a contract between the parties is referred to. For these items defendant claims that he should have credit, though they sum up more than the balance claimed by plaintiff. No objection appears to the statement of plaintiff's cause of action being stated in the form of an account until at the close of his evilence on appeal in the circuit court, when defendant moved to dismiss for the reason that it appeared by plaintiff's testimony that

there was a written contract covering the items of the account. The court overruled the motion, and defendant has made such action the principal ground of his appeal.

When a suit is upon a written instrument, the statute (section 3852, Rev. St. 1899) requires that it shall be filed with the justice. But if the subject-matter is such that it may be stated in an account, the plaintiff need not sue on the contract, and may state his case as an account, the contract being evidence in his behalf. Kingsland & Ferguson Mfg. Co. v. St. Louis Malleable Iron Co., 29 Mo. App. 526. If there is a verbal contract, the action may be stated in the form of an account sufficiently definite to apprise the opposite party of the matter in controversy and to bar another action. The action need not be brought specifically on the contract. Barham v. Colp, 87 Mo. App. 152, 156. The statute only requires a written instrument 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 account, it may be so brought. In this case the account is a full statement of the items which go to make it up, and a judgment thereon would undoubtedly bar any other action involving such items.

We are of the opinion that the instructions for plaintiff given over defendant's objections were correct. There is no good ground of objection to the third one on the subject of defendant's counterclaim. Certainly, if the hypothesis therein submitted was believed, the finding on that subject should be as directed. The judgment is affirmed. All concur.

1. CARRIERS-ELEVATORS-INJURY TO PASSENGERS-CARE REQUIRED.

Persons operating elevators for public use in stores are common carriers of passengers, and bound to exercise the highest practicable care used by prudent men in operating elevators to prevent injury to passengers.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 966, 1092, 1194.] 2. SAME-NEGLIGENCE.

In an action for injuries to a passenger by the operation of an elevator, the court should have charged that defendants were liable for slight negligence on the part of their employé in charge of the elevator.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1092, 1194, 1333.] 3. SAME-ACTION FOR INJURY-PLEADING.

Where, in an action for injuries to an elevator passenger, the instructions did not au thorize a verdict for plaintiff on a finding that the elevator was carelessly started from the landing, the failure of an allegation in the petition that the operator started the car before plaintiff's dress was released from the door to allege that the car was negligently started was immaterial.

4. SAME-DIRECTION OF VERDICT.

Where there was evidence that defendants' employé carelessly closed the door of an ele

vator on plaintiff's dress, and at the same moBet started the elevator, and negligence in that respect 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 woce of the grounds of negligence alleged were not proved.

5 SAME-NEGLIGENCE-QUESTION FOR JURY.

Defendants' elevator operator shut the elerater door on plaintiff's dress while she was Eanding in the car, and lowered the elevator at the same instant. The operator, seeing plaintifs peril, suddenly reversed the lever, which resulted in the car suddenly turning upward, causing plaintiff's injuries; the operator claiming that, unless he acted as he did, the descent the elevator could not have been stopped kly enough to save plaintiff from harm. Feld, that whether the operator was negligent tanding the elevator after he saw plaintiff's danger was for the jury.

SAME-PROXIMATE CAUSE OF INJURY.

The movement of the elevator upward, as Estinguished from the negligence of the elevator perator in moving the elevator when he knew should have known that plaintiff's dress was zht in the door, was not the proximate cause of the accident, as a matter of law.

7. SAME-ACTION FOR INJURY-INSTRUCTIONS. In an action for injuries to an elevator passenger, an instruction declaring that negligence on plaintiff's part, directly contributing to the injury, would not bar her right to recover, if defendants' agent or servant, after discovering paintif's danger, might, by the exercise of ordimary care, have prevented the injury to her, was erroneous, as misleading, and as requiring of the cperator no more than ordinary care to save plaintiff after he discovered her peril.

& SAME.

The instruction was also objectionable as elinating defendants' liability in case the eleTator operator was negligent in not sooner disvering plaintiff's peril.

SAME-MANAGEMENT OF ELEVATOR-NEGLI

GENCE.

Plaintiff's dress was caught in the door of elevator as the door was closed after she entered it, and, the elevator being caused to deend immediately thereafter, the operator dismered plaintiff's peril, and reversed the elerator; and, before it could be stopped, plaintiff s injured by being caught between the elerator foor and the ceiling. Held, that as any gence on plaintiff's part must have occurred if at all, before the elevator began to ded. and the operator being charged with the ty to exercise unusual vigilance for plaintiff's afety, if by the exercise of such vigilance he ald have seen that plaintiff's dress was caught time to prevent injury to her, defendants vere liable.

20. SAME-INSTRUCTIONS.

An instruction that defendants were liaif plaintiff's injury was caused by "any Sure" on their part to exercise care and preMotion in the management of the elevator, as stinguished from a failure of duty "shown by Se proof" was error.

SAME-LIABILITY FOR INJURY TO PASSENGER-ACCORD AND SATISFACTION-INFANCY. Where plaintiff was injured by the operat of an elevator in which she was being ansported from one floor to another in defend

store, her failure to reply to a letter proing that defendants would continue to pay bet her board and attention at a hospital, if she red them she would make no additional deand on account of her injury, did not constian accord and satisfaction; she being a or until after she left the hospital.

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

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.

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 accident 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

quickly reversed the lever on the 'up,' and in going up the jolt was too quick. It was too great for the engine of the elevator, and it shot up a little swifter than it usually ought to if you would run the elevator right; and, in going up, it threw her leg out, and her leg was caught between the upper portion-well, you can say the portion of the ceiling and the upper portion of the elevator -and it was drawed through. It was drawed through, and when we got to the third floor, why, her leg was out by that time." The resultant injury was a compound fracture of the limb below the knee. Defendants sent plaintiff to a hospital, and paid for her board and treatment until she was discharged. Some of the testimony tends to prove the elevator was at the fourth floor, instead of the second, as plaintiff swore, and that, in the teeth of warnings, she persisted in standing close to the open entrance, in consequence of which imprudence her dress caught at the third floor.

Negligence is charged against defendants in the petition as follows: "The plaintiff states that the defendants, unmindful of their duties in the premises, failed to carry plaintiff well and safely between said floors heretofore mentioned, in this: that, as plaintiff was standing in said elevator, defendants' agent, without fault on plaintiff's part, carelessly and negligently suddenly closed the door of said elevator so as to catch said plaintiff's dress in the door and entangle it in the wheels of the elevator, which said wheels were carelessly and negligently exposed and uncovered; and defendants' agent then started said elevator before said dress was disentangled from said door and wheels, whereby plaintiff was thrown with great force and violence against the side and top of said elevator, whereby plaintiff was mangled, bruised, and greatly injured, her leg was broken," etc.

The following letter was offered by defendants and excluded:

"St. Louis, February 2d, 1901. Miss Mary Hensler, Care of St. Luke's Hospital, CityDear Miss Hensler: Referring to the accident that befell you at our plant some time ago, we beg to state that as a matter of generosity we have for some time been paying the expenses of your room, board, nurses and physician. These expenses we can assure you are very considerable. We have done this with pleasure and are willing to contribute to pay all these expenses until you are well as a matter of favor, provided that your attitude toward us is friendly. We have received intimations, however, of late that look as though there is a prospect of your ultimately making some claim against us through an attorney. Of course, if this is your intention, we shall expect you to inform us at once, so that we can discontinue the large expense which we are at present put to. Had we thought that you would possibly have maintained this atti

tude, we should not have done as much as we have done.

"At any rate, if you have any such plan for the future, we wish you would let us know at once, so that we may discontinue the expenses of hospital and physician right away. We are confident that you will deal with us in this matter in perfect frankness. In other words, if you have no idea of employing a lawyer and making a further demand upon us, we are willing to continue your treatment until you get well. If, however, you have in mind the bringing of a claim against us later, we want to stop all expenses now.

"Please advise us at once and oblige, "Very truly yours,

"Stix, Baer & Fuller, "Per C. Stix." These instructions were given for the plaintiff over defendants' objection:

"(1) The court instructs the jury that it was the duty of the defendants and their agents and servants, in the management of their elevator, to exercise reasonable care and precaution to prevent any injury to persons in or upon said elevator, and any failure on their part to exercise such care and precaution would be such negligence as to make defendants liable for the injuries to plaintiff resulting from such negligence, unless the jury believes that the plaintiff's contributory negligence was the proximate cause of the accident; and, in passing upon the question of negligence of the defendants' agents and servants, and the contributory negligence of plaintiff, you should take into consideration all the facts and circumstances as proved by the evidence to have existed at the time when and the place where the injuries occurred, and you should give to each fact and circumstance, and to the testimony of each witness, such weight only as you may deem such fact, circumstance, or testimony entitled to, in connection with all the evidence in the case.

"(2) If the jury finds that the plaintiff was injured by the negligent or careless closing of the elevator door by defendants' servant, or by negligence or carelessness on the part of the defendants' servant in reversing and returning the elevator after the plaintiff's dress was found to be caught, then the plaintiff is entitled to recover.

"(3) If the jury finds that the contributory negligence of the plaintiff was the proximate cause of the catching of her dress in the elevator door, but finds that the injury to her person might have been prevented by a careful reversal and return of the elevator by the servant of the defendants after the dress was found to be caught, then the plaintiff is entitled to recover.

"(4) By the term 'negligence,' as used in these instructions, is meant the want of that degree of care that any ordinarily prudent person would have exercised under the same or similar circumstances."

"By the term 'contributory negligence' is meant any negligence on the part of the plaintiff directly contributing to her injury; bot such negligence on her part, if the jury inds the same to have existed, will not bar her right to recover, if defendants' agent or servant, after discovering the danger in which plaintiff was placed by her negligence, might have, by the exercise of ordinary care, prevented the injury to plaintiff.”

The following instructions were given for defendants:

"(5) The court instructs the jury that there is no evidence of any negligence on the part of the defendants in connection with the equipment of the elevator.

"(6) The court instructs the jury that by the words 'ordinary care,' as used in these instructions, is meant such care as a person of ordinary prudence would exercise under the same or similar circumstances.

8) The court instructs the jury that the burden of proof is upon the plaintiff to prove that the injuries complained of by plaintiff were due to negligence on the part of the defendants, and the plaintiff, in order to recover, must prove this by the preponderance or greater weight of the evidence."

These instructions were requested by defendants and refused:

"(a) The court instructs the jury that, in order to find a verdict in this case, each and every one of your number must agree to said verdict.

(b) The court instructs the jury that if you believe from the evidence that the plaintif was guilty of a failure to exercise ordimary care, which directly contributed to cause her injury, then you will find for the defend

ants.

"(e) The court instructs the jury that the plaintiff is not entitled to recover in this case unless you find from the evidence, first, that the man in charge of the elevator of defendants was guilty of negligence that contribut

directly to plaintiff's injuries; and, secend, that the plaintiff herself was not guilty of any negligence that directly contributed to cause any injuries complained of."

Verdict and judgment were entered for the plaintiff, and defendants, who had saved exreptions to all adverse rulings, appealed.

Opinion.

1. Persons who operate elevators for the se of the general public, in stores and other idings, are treated as common carriers of essengers, and held to the exercise of the highest practicable care, and such as prudent en use in operating elevators, to prevent iny to passengers. Lee v. Knapp, 155 Mo. 10, 56 S. W. 458; Becker v. Lincoln, etc., 174 Mo. 246, 73 S. W. 581; Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035. is the duty of a passenger on an elevator, and hence it was plaintiff's duty, to use ordiy care to keep from getting hurt. Becker 174 Mo., loc. cit. 250, 76 S. W. 1035.

The latter proposition was declared by the trial court, but the defendants were not held responsible by the instructions for slight negligence on the part of their employé in charge of the elevator, as they should have been. This error affords defendants no ground of complaint, but is noticed because the case may be retried.

2. The petition contains an averment that the operator started the car before plaintiff's dress was released. That averment is said to be no statement of an independent act of negligence or separate cause of action, because it is not charged that the elevator was started negligently. Neither the word "negligently," nor any of similar import, is used as descriptive of the act of starting. Nevertheless a cause of action might be founded on the starting of the elevator when the operator knew, or by using due care could have known, plaintiff's dress was caught in the door. The operator stood right by the door, and had a good chance to observe that her dress was caught. It was his duty to use great care to have the passengers in safe positions before he moved the elevator. But the instructions authorized no verdict for the plaintiff on a finding that the elevator was carelessly started from the landing. Therefore any fault in the allegation about starting is immaterial. If negligence in that regard is to be relied on as a separate ground of recovery, the averment about it should be completed by the addition of the fact that the operator knew or ought to have known her dress was caught when he started the machine.

3. Plaintiff's pleading does not fit the facts disclosed by the evidence in all respects. The negligent acts mentioned in the petition as the cause of the casualty are, first, closing the door on plaintiff's dress so that it became entangled in the wheels of the elevator; second, carelessly leaving the wheels exposed; and, third, starting while plaintiff's dress was fastened. The petition avers that by those acts plaintiff was thrown against the top and side of the elevator and injured. Plaintiff was not injured in that way, but, as all the evidence shows, by her leg getting caught between the floor of the elevator and the edge of the ceiling of one of the stories of the building. Neither did exposed wheels have anything to do with the casualty, nor was there any proof that the wheels of the machinery were exposed. Counsel for defendants insist the accident was due proximately to reversing the elevator, thereby causing it to ascend again, and not to its descent, or exposed wheels, or closing the door on plaintiff's dress; further, that the petition says nothing about the reversal of the movement of the elevator, and therefore plaintiff could not recover on her pleading, which specified only acts of negligence that in no way contributed to the accident. The conclusion is deduced that the court should have directed a verdict for the defendants.