Beaver v. Mason, Ehrman & Co.

• Decision Date: 15 September 1914
• Citation: 143 P. 1000,73 Or. 36
• Parties: BEAVER v. MASON, EHRMAN & CO.
• Court: Oregon Supreme Court

143 P. 1000

73 Or. 36

BEAVER v. MASON, EHRMAN & CO.

Supreme Court of Oregon

September 15, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; R. D. Parker, Judge.

Action by M. C. Beaver, administrator of the estate of Don Beaver deceased, against Mason, Ehrman & Co., a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Burnett J., dissenting.

T. G. Greene and R. J. Brock, both of Portland (Sheppard & Brock, of Portland, on the brief), for appellant. G. G Schmitt and O. M. Hickey, both of Portland (Schmitt &amp Schmitt, of Portland, on the brief), for respondent.

RAMSEY J.

The defendant is a corporation doing a wholesale grocery business in the city of Portland. Its place of business was a seven-story building, and it employed a large number of persons in and about said building in carrying on its business. Don Beaver, a boy, was in the employ of the plaintiff on December 14, 1912, as a messenger boy, and was killed in one of the elevators of that building on that day. At the time of his death he was 17 years, 2 months and 4 days old. The plaintiff, his father, was appointed administrator of his estate, and brought this action for damages. The defendant used each of the seven floors of its building in carrying on its business. There were three elevators in the building, running from the basement to the seventh story, and used in transferring goods to and from different points in the building and in passing from one floor to another as the exigencies of the business required. One of these is called the city elevator, and in this elevator Don Beaver received the injuries that resulted in his death. The complaint alleges in part:

"That on or about the 14th day of December, 1912, in the aforesaid building, city, county and state, said Don Beaver, deceased, while performing his duty as office and errand boy, was instructed by the defendant and its agents, to perform a certain errand on the sixth and seventh floors of said building. That pursuant to said instructions said Don Beaver, deceased, ascended from the first to the sixth floor of said building in one of the said elevators used and operated by the defendant for the purpose of ascending and descending from one floor to another of said building, as aforesaid, and which was the same method pursued by said deceased on all former occasions while performing errands on said sixth and seventh floors, and the method pursued by all other employés in ascending and descending from the first floor to the sixth and seventh stories of said building, that being the usual course pursued by the defendant and all of its agents and employés. That while said Don Beaver was either in the act of entering on the sixth floor to ascend to the seventh, or while in the act of leaving the elevator on the sixth floor, or while in the act of attempting to enter the elevator to descend from the sixth floor, the exact act being unknown to plaintiff, said deceased was caught in the railing used on the sixth floor as a gate to the elevator shaft, and said elevator was moved by some one, unknown to plaintiff, on another floor, in suddenly starting said elevator in operation in an ascending direction, causing said deceased to be carried with part of his body extending beyond the floor line of said elevator to the ceiling of the sixth floor, and there seriously crushing, bruising, and injuring him about the head, shoulders, chest, and body, from the effects of which he died a few hours thereafter.

"That the proximate cause of the death of said Don Beaver, caused by the wrongful, unlawful, and negligent acts of the defendant in then and there allowing the said elevator, upon which said deceased was ascending, as aforesaid, to be operated, in that the same was then and there in an unsafe and dangerous condition, and particularly in that said elevator was not provided with a safety device so that persons using the elevator at any one floor could lock the operating cable to prevent the moving of the elevator by persons on another floor during the time the person in charge of the elevator leaves or enters the same, and in that said elevator was not provided with an automatic shut-off whereby said car could be stopped at any point between its foot and its highest landing, and in that the devices which were used on said car as a lock were out of order, in that said car could not be locked on every floor or on any of the floors on said building in its ascent or descent, and that the device used on said car as a shut-off was out of order, in that said elevator could not be stopped at its foot or any point to and including its highest landing, and, further, in that said elevator and elevator shaft was not provided with safe, proper, and suitable framework, railing, automatic or self-closing gates; that said elevator, among other things, was not provided with an automatic shut-off so that said car could be stopped at its foot and highest landing, and was not provided and equipped with an automatic trip or slack cable stop and an automatic brake of sufficient strength to hold the car at any point, and said elevator was not provided with a safety device by which persons using the elevator at one floor could lock the operating cable to prevent the moving of the elevator by persons on another floor, and said elevator and said elevator shaft was not protected with suitable framework or railing, and with automatic or self-closing gates, and all contrary and in violation of the laws of the state of Oregon, and all contrary and in violation of an ordinance of the city of Portland, county of Multnomah, state of Oregon, which ordinance is No. 21455, entitled 'An ordinance regulating the construction, erection and enlargement, raising, alteration, repairing and use of building, and to provide for protection against fire, and provide a penalty for the same,' and particularly all of part five of said ordinance, including titles 1, 2, and 3, which ordinance was passed by the common council of said city on the 22d day of June, 1910, approved by the mayor of said city, Joseph Simon, on the 24th day of June, 1910, the same to take effect and be in force from and after January 1, 1911, and which said ordinance was in full force and effect on the 14th day of December, 1912.

"That the proximate cause of the death of said Don Beaver was further due to the wrongful, unlawful, and negligent acts of the defendant in then and there allowing and permitting said deceased to operate said elevator, who was then of the age of 17 years, 1 month and 4 days, and contrary and in violation of the laws of the state of Oregon, and by the wrongful, unlawful, and negligent acts of the defendant in allowing an elevator to be placed at the disposal and use of the said deceased, who was then of the age aforesaid.

"That the proximate cause of the death of said Don Beaver was further

due to the wrongful, unlawful, and negligent acts of the defendant in maintaining, permitting, and allowing an elevator to be used by said deceased which was then out of order and in a dangerous and unsafe condition without having warned and notified said deceased of the danger in connection therewith and by the wrongful, unlawful, and negligent acts of the defendant in using, permitting to be used, and placing at the disposal for use a freight elevator for the use of conveying passengers, and by the wrongful, unlawful, and negligent acts of the defendant in employing said deceased in a dangerous and unsafe place."

The complaint also alleges damages in the sum of $7,500. The defendant's answer denies much of the complaint and sets up affirmative matter, including an allegation of assumption of risk by the decedent, and that the accident resulting in his death was due to his carelessness and negligence, etc. The most of the affirmative matter of the answer was denied by the reply. The trial resulted in a verdict and judgment for the plaintiff in the sum of $7,500. The defendant appeals.

When all of the plaintiff's evidence was in, the defendant filed a motion for a judgment of nonsuit for the following reasons: (1) That the evidence does not prove a cause of action in favor of the plaintiff and against the defendant; (2) that the proof does not show how or in what manner the said Don Beaver met his death; (3) that the proof does not show that any of the alleged acts of negligence charged against the defendant was the proximate cause of the death of said Don Beaver. This motion was denied.

After all the evidence had been submitted the defendant moved the court to instruct the jury to find a verdict for the defendant for the reasons set forth in said motion for a judgment of nonsuit. This motion, also, was denied. After the judgment was rendered, the defendant moved for a new trial. This motion, also, was denied.

The defendant assigns the following errors only:

"(1) That the court erred in overruling appellant's motion to strike out certain portions of plaintiff's complaint; (2) That the court erred in overruling appellant's motion for a judgment of nonsuit; (3) that the court erred in overruling appellant's motion to direct a verdict after the evidence of plaintiff and defendant was in; (4) That the court erred in overruling the defendant's motion for a new trial; (5) that the court erred in rendering judgment in favor of the plaintiff and against the defendant."

1. The motions for nonsuit and for an instructed verdict for the defendant will be considered together. It will be noted that the plaintiff does not claim that there was any error of the trial court in the admission or the rejection of evidence, or in the instructions to the jury. In other words, the trial proceeded without any alleged error, except in overruling the ...