Morris &. Co v. Alvis

• Citation: 107 S.E. 664
• Court: Virginia Supreme Court
• Decision Date: 16 June 1921
• Parties: MORRIS &. CO. v. ALVIS.

107 S.E. 664

MORRIS &. CO.

v.ALVIS.

Supreme Court of Appeals of Virginia.

June 16, 1921.

Appeal from Circuit Court of City of Lynchburg.

Action by J. F. Alvis against Morris & Co., for personal injuries. Verdict and judgment for plaintiff, and the defendant appeals. Reversed, and remanded for new trial.

Volney E. Howard and Jno. L. Lee, both of Lynchburg, for appellant

Harrison & Long, of Lynchburg, for appellee.

KELLY, P. J. F. Alvis, while in the employment of Morris & Co. (incorporated), fell into an unguarded elevator shaft in that company's building, and received injuries for which he brought this action. There was a verdict in his favor for $12,500, and thereupon the court entered the judgment under review.

Morris & Co. is a corporation extensively engaged in packing and selling meats, and has a branch house in Lynchburg. Alvis had been working for the company about five months. His principal business was that of city salesman and collector, but it was further his duty at times and as occasion required to assist with various kinds of work in the house. He and other employes were occasionally there at night in the performance of some of their duties, and in the regular line of their employment.

The accident occurred on the night of October 26, 1917. On the afternoon of that day, one Ross, a traveling auditor for the defendant, had come to Lynchburg to check up the business, and, not having completed his work during the afternoon, he and Alvis came back to the building that night. There is a contention on behalf of the defendant that Alvis was there voluntarily, and not in the line of his employment, and another contention that he was there temporarily in the capacity of manager, but we think the evidence is otherwise.

The first floor of the building consists of three main compartments, a shipping roomin front (reached by the main entrance to the building), an office room to the right of the shipping room, and a canned meat room in the rear. Between the shipping room and the canned meat room there is an elevator shaft, inclosed on three sides, the fourth and open side facing the shipping room. To the rear of the office and to the right of the elevator is an entrance to a cellar stairway. To the left of the elevator is the entrance to the meat room. The situation of the main entrance, the office door, the open side of the elevator shaft, and the door to the meat room are relatively such that a man making a trip from outside of the building through the main entrance into the office, and thence to the meat room, would, on coming in the main entrance, walk diagonally to his right through the shipping room into the office, then, coming back out of the office, he would walk again diagonally to his right, passing the elevator door, and around the elevator shaft into the meat room.

According to the testimony of the plaintiff, in some respects very much in conflict with the testimony of other witnesses, but accepted by the jury, the circumstances of the accident were substantially as follows:

When Ross and Alvis went back to the office on the night in question, they entered the shipping room through the main entrance, and found their way through the shipping room into the office by means of the reflection of a light from that compartment, there being a glass partition between the office and the shipping room. The electric lamps or bulbs in the office were insufficient for their purposes, and Ross suggested that they must have more light. Thereupon both of them started in search of other bulbs, which they hoped to find in some other compartment. They went first to the meat room, following the course above indicated, the plaintiff feeling his way around the wall until he was sure that he had passed the elevator opening. Falling to find the bulbs they wanted in the meat room, they turned back, intending to go to the cellar, where they thought they would find them. To do this they had to pass the open elevator door again. The plaintiff, who was immediately in front of Ross, did not on the return trip feel his way, but depended upon his estimate of the distance, and, when he thought he had proceeded far enough to be beyond the opening in the elevator, he stepped into the shaft and fell to the floor of the elevator, which at that time was in the cellar. It had been left in that position by two colored men whom Ross had "picked up on the street" that afternoon to help him. He didn't know "who they were, or anything about them"; and, so far as the record discloses, nobody connected with either the plaintiff or the defendant ever heard of them either before or after the accident.

There had originally been a door to the elevator shaft on the shipping room floor, but this door had been broken off or displaced for a year or more, and was not in use at any time after Alvis came there to work. Instead of replacing the door, the defendant adopted the expedient of using the elevator, when not in use for elevator purposes, to close the shaft by placing and leaving it so that the floor thereof was even with the floor of the shipping room, thus practically extending the floor of the shipping room into the elevator shaft, and thus obviating the danger resulting from the displaced door. In other words, the rule of the company, as a part of its plan for maintaining the first floor of its building in a safe condition, required that the elevator, when not in use, should be left so that the floor thereof would be flush with the office floor. The evidence is not entirely clear as to whose business it was to see that the elevator was left in this position when not in active use, but it was a freight elevator, operated from time to time by various employes, and the fair inference appears to be that this duty devolved upon any employ who had occasion to operate the conveyor.

It is also shown that for some time prior to the accident the lighting system in the building had been in a defective condition, some of the switches not working well, and also that the supply of electric bulbs was entirely insufficient to thoroughly light the building at night. There was not a great deal of night work to be done, and the custom had been to move the limited number of lights from place to place as occasion required.

The plaintiff, Alvis, was fully apprised of all of the foregoing conditions. The absent door, the rule or custom of keeping the elevator, when not in use, on the office floor as a substitute for a door, and the insufficiency of the lighting system, were all conditions which had prevailed ever since he began work with the company. He testifies about all of these facts, and his testimony shows that he was thoroughly familiar with them all, saying particularly, with reference to the lights, as showing that he was often there at night, that "there never were enough bulbs for all of the place, and we shifted them about from one place to another when we worked at night." This statement was in reply to a question by his counsel as to how long the condition had prevailed; and he further testifies that, if he ever made any complaint to the company about that condition he does not remember it.

The declaration charges the defendant with negligence (a) in permitting the door to remain broken and displaced, (b) in failing to furnish sufficient lights, and (c) in failing to have the elevator in proper position at the time of the accident; and says that "by reason of the said several negligences oper-ating severally and concurrently, the position of defendant's employes while using the said ground floor and the said several rooms or compartments thereof, including said office room, in the nighttime (the place was caused) to be needlessly, extraordinarily, and negligently dangerous."

It is earnestly insisted by counsel for plaintiff that these alleged acts of negligence cannot be looked at separately, but that they must be viewed collectively, that it was "the concurrence of these conditions" which created the danger. We are unable to appreciate the force of this contention. Of course, if there be two causes, exclusive of a plaintiff's contributory negligence, concurring in an injury, for one of which the defendant is not responsible, and for the other of which it is, there is usually a case of liability. But here it is not clear that the defendant can be held legally responsible for either of the grounds upon which it is charged with being negligent. The door to the elevator on the shipping room floor had never been in use since the plaintiff began work, and he knew all about that fact, and all about the substitute which had been adopted in place of it. There might be some question as an original proposition whether the adoption of the substitute was a safe and suitable rule or method, but the plaintiff cannot make this point, because he was fully apprised of the rule or method, and continued to work without protest. With reference to this arrangement in itself, therefore, as well as with reference to the condition of the lights, he can make no complaint.

It is true that as a general rule an employ does not assume risks arising out of the negligence of the master, but, when the rule is thus stated, it has reference to the ordinary risks of the business, and there is nothing better settled that that where the danger is open and obvious, and the servant continues to work with knowledge of the danger, he assumes the risk whether it be a risk ordinarily incident to the business or not, and whether it be due or not to the master's want of reasonable care as an original proposition. This principle is nowhere more firmly established than in...