Atkeson v. Jackson Estate

• Decision Date: 21 February 1913
• Citation: 130 P. 102,72 Wash. 233
• Parties: ATKESON et ux. v. JACKSON ESTATE.
• Court: Washington Supreme Court

130 P. 102

72 Wash. 233

ATKESON et ux. v. JACKSON ESTATE.

Supreme Court of Washington

February 21, 1913

Department 2. Appeal from Superior Court, King County; John F. Main Judge.

Action by James B. Atkeson and wife against the Jackson Estate. Judgment for plaintiffs, and defendant appeals. Affirmed.

John W Roberts, of Seattle (Ramey & Smith, of Seattle, of counsel) for appellant.

A. R. Rutherford and Milo A. Root, both of Seattle, for respondents.

FULLERTON J.

This action was brought by the respondents against the appellant to recover for the alleged negligent killing of their minor child. After issue joined the action was tried by the court, sitting without a jury, and resulted in findings and a judgment in favor of the respondents for the sum of $1,000 and the costs of suit. This appeal is prosecuted from the judgment entered.

The record discloses that the appellant owns a five-story apartment house, situated in the city of Seattle. For the use of its patrons, the house is equipped with the usual stairways, and with an automatic electric elevator. The elevator was so constructed as to be used by the patrons of the house without the aid of an elevator operator. The elevator cage could be brought to any floor of the building by pushing an electric push button on that floor. When the cage reached the floor, the door to the elevator shaft could then be opened, the passengers could enter the cage, and could direct the cage to the floor on which they intended to alight by pushing another push button, located inside the elevator cage, numbered to correspond with such floor. The elevator cage and the shaft or well in which it operated were constructed in the usual way. The elevator cage was held in place by guide shoes, placed at the top and bottom of the cage on each side, which ran over guide strips extending from the bottom to the top of the well. The floors on each of the several stories on the side of the well containing the doors extended into the well some 2 1/2 or 3 inches beyond the perpendicular wall, so that, as the floor of the cage came even with the floors of the building, it would be so far flush therewith as to leave an inconsiderable space between the two; while, when between the floors, there would be a space between the cage and the wall of the elevator well of from 3 to 4 inches. There was no means of closing the opening leading into the cage, so that, as the cage ascended and descended, the only obstacle preventing a passenger from falling out of the cage door was the wall of the elevator shaft.

On October 6, 1911, the respondents hired a suite of rooms on the fourth floor of the appellant's house. Their family consisted of a little girl two years and two months old and a babe in arms. At the time of their entrance into the building, they were instructed as to the manner of operating the elevator by the persons in charge of the building, and informed that they could use it as one of the means of ingress and egress from their rooms to the street. Between the date named and November 7, 1911, a period of some 32 days, the mother used the elevator on an average of, perhaps, four times a week, passing up and down with her two children, carrying the younger one usually in a baby buggy. On the day last named she left the building with her children for a trip downtown to do some marketing, returning later with a number of packages, some of which she carried in her arms and some in the baby carriage. When she reached the elevator, she opened the elevator well door, entered the elevator cage as usual, placed the baby buggy at the far side of the cage, and instructed her daughter to hold onto it. She then closed the door and pushed the button for the floor on which her rooms were situated. As the elevator started, which was somewhat suddenly, the little girl fell forward, with her head protruding through the cage door or opening. The mother reached for her at once; but before she could seize her the elevator had reached the second floor, and had caught the girl's head between the floor of the cage and the protruding floor beam, crushing her skull and killing her.

The trial court found: 'That by reason of the manner in which the floors projected into the said elevator well, and by reason of the manner in which the edges were constructed, and by reason of the lack of a gate, door, or other protection inside of said cage, and by reason of the fact that said elevator was without any operator, but was required to be operated by the passengers, and by reason of the fact that many of the tenants of the apartment house for whose use said elevator was maintained by defendant were women and children, the court finds that the defendant was guilty of negligence in maintaining said elevator for the uses and purposes and in the manner that it was then maintaining said elevator; and that the death of said Mildred Atkeson [the child killed in the elevator] was the direct and proximate result of said negligence.'

The appellant contends that the record does not justify the conclusion that the matters herein enumerated convict it of actionable negligence. It contends, with reference to the projection of the floors of the building into the elevator well, and with reference to the want of a gate or door to the opening in the elevator cage, that the evidence shows that in these respects the elevator does not differ from those in common use generally, and that, if it be negligently constructed in this respect, then all elevators are negligently constructed, a conclusion that is not warranted from the mere fact that a child met its death on this elevator; and it argues, with reference to the entire charge of negligence, that all of the matters therein set forth were as obvious and apparent to the respondents as they were to the appellant or its officers, and that, since they made use of the elevator, knowing and appreciating its dangers, they cannot, because of the doctrine of contributory negligence, recoup for any injury they may have suffered thereby from the negligence of the appellant.

It must be conceded that, in so far as the evidence discloses, the elevator shaft or well and the elevator cage did not differ in manner of construction from those in common use. In the numerous elevator wells in the city of Seattle, and in those elsewhere of which the elevator constructors and builders had knowledge, the floors protruded into the elevator well at the landing places, as did the floors in this instance; and in only two instances was it shown that there was a gate or door to the entrance into the elevator cage. It was shown, also, that elevators operated by electric power did not differ materially in mechanical construction from those operated by power generated in the more ordinary ways; and that in none of the electrically controlled elevators of which the witnesses had knowledge was there a door or gate by which the entrance to the elevator cage could be closed. All the expert witnesses, however, who testified on the subject of elevator construction, stated that there was no mechanical reason why such a door could not be installed; and that it, if properly fitted, would protect passengers in the elevator from all such accidents as happened to the child in this instance.

But, notwithstanding the fact that the elevator in question does not differ in construction materially from the elevators in common use, we think the trial court correctly decided that the manner in which this elevator was constructed and operated in this particular instance constituted negligence. It must be remembered that in this state the operator of an elevator is a common carrier of passengers, and is held to the degree of care imposed upon common carriers generally; they must exercise, with reference to the elevators under their charge, the 'highest degree of care compatible with their practical operation.' Perrault v. Emporium Department Store Company, 128 P. 1049; Edwards v. Burke, 36 Wash. 107, 78 P. 610. And consistent with this rule it is not too much to say that the appellant should have had a door or gate by which the entrance to the elevator cage itself could have been closed.

It is not our intention to hold that all elevators now operated whose cages are without gates or doors, are negligently constructed or operated. That question is not before us. What we mean to hold is that elevators, intended for the use...