Beatty v. Metropolitan Bldg. Co.

• Court: Washington Supreme Court
• Writing for the Court: CROW, J.
• Citation: Beatty v. Metropolitan Bldg. Co., 63 Wash. 207, 115 P. 90 (Wash. 1911)
• Decision Date: 19 April 1911
• Parties: BEATTY v. METROPOLITAN BLDG. CO.

115 P. 90

63 Wash. 207

BEATTY v. METROPOLITAN BLDG. CO.

Supreme Court of Washington

April 19, 1911

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Frank Beatty against the Metropolitan Building Company. From a judgment of nonsuit, dismissing the action, plaintiff appeals. Reversed and remanded for new trial.

Owens &amp Finck and Reynolds, Ballinger & Hutson, for appellant.

Kerr &amp McCord, for respondent.

CROW J.

Action by Frank Beatty against the Metropolitan Building Company, a corporation, to recover damages for personal injuries. At the close of plaintiff's evidence the trial judge sustained defendant's motion for a nonsuit and dismissed the action. The plaintiff has appealed.

The evidence produced by appellant, which on a motion for nonsuit must be accepted as true, was sufficient to show the following facts: The respondent owned an uncompleted office building in the city of Seattle. The upper floors being completed were rented by respondent to tenants, who occupied the same. The building when fully completed was to be equipped with four passenger elevators. For this purpose an elevator shaft divided into four compartments, one for each car, was provided. One completed elevator was installed in the south compartment, and on October 18, 1908, the date of the accident, was being used for carrying passengers to and from the upper floors. An employé of respondent was in charge of and operated this particular car as the elevator boy. In the compartment immediately north of and adjoining this south compartment, a new car was being installed, and appellant, a servant of the contractor who was completing the building, was employed to adjust an iron plate thereto. In performing this work it became necessary for appellant to enter at the first floor the south compartment, in which the completed elevator was running, and remain there about 10 or 15 minutes. Thereupon appellant requested the elevator boy not to descend below the second floor until appellant's work had been completed, telling him it would be necessary for appellant to occupy the shaft at the first floor about 10 or 15 minutes. The elevator boy assented to this arrangement, and agreed not to descend below the second floor until notified by appellant. He then ran the car to an upper floor, leaving the door of the south compartment open on the first floor, so that appellant might gain admission. Appellant thereupon entered the south shaft and proceeded with his work. After he had been thus employed about a minute or two, the elevator, without warning, descended to the first floor, and seriously injured him. The completed car was in good order, and could be readily stopped within a distance of two or three feet, by the use of a controller or handle in charge of the operator.

Appellant contends that the elevator boy, by his negligence and while acting within the scope of his employment, inflicted the injuries of which he now complains. Respondent insists that the nonsuit was properly granted, contending (1) that, when the elevator boy upon appellant's request promised to operate the car to the upper floors and not to descend below the second floor, he went outside of the scope of his employment in making such agreement; and (2) that in making such arrangement the appellant made the elevator boy his servant for that particular purpose, and in so doing was guilty of contributory negligence. In support of its position the respondent cites a number of authorities, but seems to place especial reliance upon Jossaers v. Walker, 14 A.D. 303, 43 N.Y.S. 891, and Hall v. Poole, 94 Md. 171, 50 A. 703.

It must be conceded that these cases to a very considerable degree support appellant's contention. In each of them it was held that the operator of the elevator, in effecting an arrangement with the plaintiff for his protection, which to some extent interfered with or changed the usual method of operation, went outside of the scope of his employment, and that his employer was not liable for his subsequent act of negligence in violating his agreement and causing the injury to the plaintiff. We are not inclined to follow the reasoning of these cases. In each instance the defendant's employé was placed in charge of a dangerous appliance, for the purpose of operating it for defendant's profit, and while thus engaged negligently injured the plaintiff. In this action the promise made for appellant's protection was to temporarily refrain from operating the elevator below the second floor. The making of such promise, and the circumstances surrounding it, gave the operator actual notice that appellant was about to be in a position of danger, should the car be operated below the second floor. The boy remained in charge of the car as respondent's employé, and it seems unreasonable to contend that, while thus employed and in charge of the car, it was not his duty to refrain from injuring the appellant.

There is a marked conflict of authority in cases of this character and we feel constrained to approve and adopt the rule announced in the following cases: Soderstrom v. Patten, 131 Ill.App. 32; Farmers' & Mechanics' Ntl. Bank v. Hanks (Tex. Civ. App.) 128 S.W. 147; Donovan v. Gay, 97 Mo. 440, 11 S.W. 44. These cases are directly in point. In Soderstrom v. Patten the facts are almost identical. There a workman employed to repair an elevator shaft effected an arrangement with the elevator boy to move the car up in the shaft and quietly remain there. The elevator, contrary to the agreement, was moved higher up in the building, causing a counterweight to strike and injure the workman. The employer of the elevator boy, as defendant in an...