Appeal
from Baltimore City Court; Danl. Giraud Wright, Judge.
Action
by Olin Bryan against the Belvidere Building Company of
Baltimore. From a judgment in favor of plaintiff, defendant
appeals. Affirmed.
Argued
before McSHERRY, C.J., and BRISCOE, PAGE, PEARCE, SCHMUCKER
BOYD, JONES, and BURKE, JJ.
PEARCE
J.
The
defendant below, the Belvidere Building Company, was on
December 10, 1903, engaged in conducting a public inn, known
as the Belvidere Hotel, in a building in the city of
Baltimore, and maintained and operated therein a passage
elevator for the transportation of the guests of the hotel
and those having business with them, or with the defendant,
from one story of the building to another. The plaintiff, now
the appellee, while rightfully upon said elevator as a
passenger, was thrown or fell from it, and sustained serious,
permanent injuries, for which he brought suit and recovered
damages in the Baltimore city court, and from that judgment
the defendant has appealed.
The
declaration contained two counts, the first of which is as
follows:
"(1)
For that on the 10th day of December, A. D. 1903, the
defendant was in possession of a building in Baltimore City
and conducted in said building a public inn or hotel. That
the persons in said inn or hotel were carried from the
cellar to the different floors by means of a passenger
elevator. That the movements of said elevator were under
the control, direction, and operation of a servant of the
defendant. That it was the duty of the defendant towards
its persons who rightfully took passage on said elevator to
use the unmost care and diligence which human foresight
could use to provide for the safety of said persons who
rightfully took passage in said elevator. That on the 10th
day of December, A. D. 1903, the plaintiff visited said
hotel to partake of an entertainment provided by the
defendant for compensation for himself and others, and the
plaintiff, to reach the room provided by the defendant for
said entertainment to be served, took passage in said
elevator from office floor to reach the second floor of
said inn or hotel: That, as the plaintiff attempted to step
from the elevator to the second floor, it suddenly dropped,
striking him a severe blow on his left hip and crushing,
contusing, and lacerating the left thigh of the plaintiff
and throwing him with a severe blow on the top of the
rapidly descending elevator. That, when the elevator passed
the office floor of said building, it commenced rapidly to
ascend with the plaintiff on its top, and, when in its
rapid ascent it reached the second floor of said building,
the elevator doors of which were still open, the plaintiff
fell or rolled from the top of said elevator to the said
second floor. That the sudden dropping and ascent of said
elevator, as aforesaid, was caused by the improper and
defective construction and maintenance of the machinery and
its appliances, used in its propulsion and movements. That
the injury to the plaintiff, hereinafter set forth, was
caused by the failure of the defendant to perform the duty
they owed the plaintiff to provide said elevator with
proper machinery and appliances and to properly maintain
the same. That by reason of said negligence of the
defendants in failing to properly control and maintain said
elevator the plaintiff was seriously and permanently
injured. That the left hip and thigh of the plaintiff was
struck and caught between the side or edge of the rapidly
descending or dropping elevator and the shaft down which
the elevator was falling or dropping, and crushed,
contused, and lacerated. That the body of the plaintiff
received a severe blow as it fell or rolled from the top of
the rapidly ascending elevator through the open elevator
doors to the said second floor. That the viscera of
plaintiff, by reason of said injuries and the shock
incident thereto, were seriously injured and permanently
impaired. That the brain and nerve centers of plaintiff,
because of the severe shock caused by said injuries, were
seriously disturbed and permanently injured. That in sundry
other ways the plaintiff was severely and permanently
injured and his organs and their functions permanently
injured and impaired. That the plaintiff, before and at the
time of his receiving said injuries,
was an attorney at law in the active practice of his
profession; that his professional duties constantly require
of him a vigorous exercise of his brain and mental powers.
That the injuries aforesaid have permanently deprived the
plaintiff of the power of continuously and vigorously
exercising his brain and mental powers in the duties of his
profession. That by reason of said injuries the
professional business of plaintiff and it profits have been
destroyed, and he has lost and been deprived of large
retainers, as well as gains and profits from fees and other
remuneration and compensation usually received by lawyers
in active practice. That said injuries have caused the
plaintiff to suffer great and excruciating mental and
physical pain and suffering. That the injuries aforesaid to
the plaintiff were directly and proximately caused by the
said negligence of the defendants, and the plaintiff did
not by his negligence contribute to said injuries; but said
plaintiff used ordinary and reasonable care in traveling on
and leaving said elevator, whereby the plaintiff brings
this suit to recover damages for the injuries
aforesaid."
The
second count differed from the first only in charging:
"That the sudden dropping and ascent of said elevator as
aforesaid was caused by the negligence and carelessness of
the servant of the defendant who was running said elevator
and in charge of its operation and the running of the same.
That the injury of the plaintiff hereinafter set forth was
caused by the negligence and carelessness of said servant of
defendant in operating and running said elevator, and a
failure of the defendants to perform the duty it owed the
plaintiff to provide a servant who would exercise ordinary
and reasonable care in operating said elevator when carrying
guests as passengers. That, by reason of said negligence of
the defendant in failing to have a servant who would exercise
ordinary and reasonable care in operating said elevator, the
plaintiff was seriously and permanently injured." This
count did not charge any failure of duty to provide a
properly constructed and equipped elevator.
The
only exception is to the ruling upon the prayers, of which
the plaintiff offered three, all of which were granted, and
the defendant offered nine, of which the first and second
were rejected, and all the others were granted. The
plaintiff's third prayer is in the usual form as to
measure of damages, and no question is raised thereon,
provided the case properly went to the jury. The
plaintiff's second prayer recites the facts necessary to
be found in his view to justify his recovery, and his first
prayer defines the degree of care required in his
transportation as the highest degree of care and diligence
practicable under the circumstances." These will be set
out in full by the reporter. The defendant's first prayer
sought to withdraw the case from the jury on the ground that
there was no legally sufficient evidence tending to show that
the inries of the plaintiff were occasioned by any negligence
of defendant in failing to provide the elevator with proper
machinery and appliances, nor by any negligence or
carelessness in failing to provide a servant who would
exercise ordinary and reasonable care in operating said
elevator, nor by any negligence or carelessness of the
servant in operating the same. And its second prayer sought
to withdraw the case upon the ground that there was no
evidence legally sufficient to show that defendant has been
guilty of any violation of any of the duties owed to the
plaintiff as alleged in the declaration. All questions of
contributing negligence were fully and fairly submitted by
the defendant's granted prayers. The defendant excepted
generally to the granting of all the plaintiff's prayers
and to the rejection of its first and second prayers, and
also excepted specially to the language of his second prayer
"by reason of the negligence and carelessness on the
part of the servant of defendant in operating the same,"
because there is no legally sufficient evidence in the case
in regard thereto, and also to the language of the same
prayer "said elevator by reason of the negligence and
carelessness on the part of the servant of the defendant,
suddenly descended," because there is no evidence
legally sufficient to be submitted to the jury on the
instruction. Both of which special exceptions were overruled.
The defendant's rejected prayers and special exceptions
require an examination of all the testimony.
The
plaintiff testified that he is an officer of the order of
Heptasophs, and that he had arranged with Mr. McCahan, the
manager of the Belvidere Hotel, to serve for him on the
evening of this occurrence, in a room upon the second floor
of the hotel, a lunch for a number of visitors and guests of
the order, to be paid for by him. This was paid to the hotel
company by Mr. Tattersall, secretary of the order, and the
amount repaid him by the plaintiff. While at lunch, he left
the room, and took an elevator to the ground floor in company
with Gov. Warfield, one of the guests, who was obliged to
leave at an early hour. On returning to the elevator he thus
details what occurred at the time of the accident. "I
found the elevator nearest the door waiting, and on entering
it I told the...
