Beal-Doyle Dry Goods Co. v. Carr

• Decision Date: 16 March 1908
• Citation: 108 S.W. 1053
• Parties: BEAL-DOYLE DRY GOODS CO. v. CARR.
• Court: Arkansas Supreme Court

108 S.W. 1053

BEAL-DOYLE DRY GOODS CO. v. CARR.

Supreme Court of Arkansas.

March 16, 1908.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Action by W. N. Carr against the Beal-Doyle Dry Goods Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Moore, Smith & Moore, for appellant. J H. Harrod and W. R. F. Payne, for appellee

McCULLOCH, J.

Appellant corporation is engaged in the wholesale dry goods business in the city of Little Rock, and occupies as its place of business a three-story building, wherein it maintains an elevator for the carriage of passengers from floor to floor. Appellee was injured by falling down the elevator shaft, and sues to recover the damages sustained, alleging negligence of a servant of appellant in allowing the door of the elevator to stand open when the car was not in place to receive passengers. The jury awarded damages, and an appeal has been prosecuted from the judgment.

Appellee went into the building to see one of appellant's employés who was at work on the third floor, and, when he went in the store, he was directed by some one sitting on the inside of the door, apparently an employé, to take the elevator. He described the way in which the injury occurred as follows: "I walked in the store, and, when I got as far from the door as from here to that stove, some gentleman said, `Who do you wish to see?' I said, `Mr. Head.' He said: `He is on the third floor. Go back, and take the elevator.' There were a number of boxes of goods upon each side of the little aisle, not over six feet wide, and I went back. I never had been in the elevator. I went straight back, and, when I went back towards the end of the house, I think probably a little past the middle of the house — I never was in there but twice in my life — when I got back there, it was very dark, and I could hardly see the floor. I turned to the left. There was a frame, and the door of the elevator was open. It looked to me exactly like there was as much floor inside as out. I stepped in that hole. When I stepped in the hole, that's about all I knew. They got me out, and hauled me home." At the time the injury occurred the elevator car was up at the third floor, and appellee fell down the shaft, a distance of about 15 feet, to a concrete floor at the bottom. Attention of employés in the store was attracted by his groans, and he was found in a helpless condition. No other eyewitness to the accident testified in the case, but the elevator boy and two ladies who were in the car on the last preceding trip from the first floor testified that the boy shut the door when the car started up. The case was submitted to the jury upon instructions conceded to be correct as to the duty of appellant in operating the elevator and care or negligence in that respect; and the court gave several instructions on appellant's request as to the duty of appellee to exercise "the precautions for his safety that an ordinarily prudent person would take under the circumstances to ascertain whether the elevator cage was in position before he entered, or attempted to enter, the elevator shaft."

The court refused to give the following instruction, which refusal is assigned as error: "(5) If you find that, upon reaching the elevator, plaintiff walked in without stopping, and without making any investigation to ascertain whether the cage was in position, and, if he had stopped and made an investigation, he would not have received his injuries, then he cannot recover in this cause, and he cannot excuse himself from making an investigation by reason of the fact that the light at the elevator was so bad that he could not distinguish the open space of the elevator shaft from the surface of the floor upon which he was walking." This instruction was incorrect, and was properly refused. It should not be said as a matter of law that it was the duty of appellee to stop for the purpose of investigating the condition which existed. It was his duty to exercise such care as a person of ordinary prudence would exercise under like circumstances for his own safety, and whether it was proper or necessary for him to stop in order to do this was a question for the jury. Railway Co. v. Martin, 61 Ark. 549, 33 S. W. 1070; Railway Co. v. Amos, 54 Ark. 159, 15 S. W. 362.

It is insisted, aside from this instruction, that appellee's own account of the accident convicts him of contributory negligence, and that for this reason the verdict is unsupported by evidence. We do not think so. There is strong reason for finding that appellee was guilty of negligence in walking into the open elevator shaft, if it was open as he claims, but we cannot say as a matter of law that he was negligent. That was a question for the jury. It is true that he might, by close investigation, have discovered that the car was not in place, and that the shaft was open, but that is not the question. Did he exercise such care for his own safety as a person of ordinary prudence would have exercised under like circumstances? That is what the law required of him, and all that it required; and whether or not he did that was a question of fact to be determined from all the evidence. Of course, there are many acts and omissions which courts as matters of law characterize as negligence per se. And, if the evidence in this case showed that appellee walked blindly into the open shaft without exercising any precaution for his own safety, we would say that he had been guilty of negligence which precludes recovery. Such, however, is not the state of the case. He says that he looked, and that it appeared to him in the dim light that there was a floor inside the open space as if it was the floor of the car. If he had not looked at all — in other words, if he had failed to exercise any of his senses to discover danger — then he would have been guilty of negligence. Whether he did so to the extent that a person of ordinary prudence would under the circumstances have done was a question for the jury. This, because the open door of the elevator could be regarded as an invitation to enter, and might to some extent have thrown him off his guard. Railway Co. v. Amos, 54 Ark. 159, 15 S. W. 362; 3 Elliott on Railroads, § 1157, and cases cited; Directors, etc., v. Wanless, 7 Eng. & Irish App. 12; Merrigan v. B. & A. R. Co., 154 Mass. 189, 28 N. E. 149; Palmer v. Railroad Co., 112 N. Y. 234, 19 N. E. 678; Abbott v. C., M. & St. P. Ry. Co., 30 Minn. 482, 16 N. W. 266; Missouri, etc., Ry. v. Ray, 25 Tex. Civ. App. 567, 63 S. W. 912. The New York Court of Appeals in Palmer v. Railroad Co., supra, where a traveler went upon a railroad track pursuant to an invitation implied from an open gate and was injured, said: "Negligence is not presumed; and, where by the act of the defendant a person has reason to believe that he may cross the track in safety, his attempt to do so and his lack of that vigilance which under the circumstances might be required cannot be regarded as constituting negligence. He is still bound to exercise ordinary and reasonable care, but the measure of his duty varies with the peculiar circumstances of the case, and its fulfillment must be determined by the jury." The same rule is laid down with respect to entering elevators. Dawson v. Sloan, 49 N. Y. Super. Ct. 304; Colorado Mort. Co. v. Rees, 21 Colo. 435, 42 Pac. 42; Bank v. Morgolofski, 75 Md. 432, 23 Atl. 1027, 32 Am. St. Rep. 403; Hopkinson v. Knapp, 92 Iowa, 328, 60 N. W. 653. We conclude, therefore, that the instructions upon which the case was submitted to the jury were correct, and that the evidence was sufficient to sustain the verdict.

Appellant offered to prove as a part of the res gestæ a declaration or statement made by Manuel Baugh, a child six years of age, immediately after the accident. The court refused to admit the testimony, and exceptions to this ruling were duly saved. The declaration made by the child and the circumstances under which it was made were as follows: J....