Blackhawk Hotels Company v. Bonfoey

• Decision Date: 22 November 1955
• Docket Number: 15294.,No. 15292,15292
• Citation: 227 F.2d 232,56 ALR 2d 1047
• Parties: BLACKHAWK HOTELS COMPANY, a corporation, Appellant, v. Laurence L. BONFOEY, and Haughton Elevator Company, a corporation, Appellees. Laurence L. BONFOEY, Appellant, v. HAUGHTON ELEVATOR COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

56 ALR 2d 1047, 227 F.2d 232 (1955)

BLACKHAWK HOTELS COMPANY, a corporation, Appellant, v. Laurence L. BONFOEY, and Haughton Elevator Company, a corporation, Appellees.

Laurence L. BONFOEY, Appellant, v. HAUGHTON ELEVATOR COMPANY, a corporation, Appellee.

Nos. 15292, 15294.

United States Court of Appeals Eighth Circuit.

November 22, 1955.

Clifford W. Gardner, St. Paul, Minn., for Blackhawk Hotels Co.

Chester D. Johnson, Minneapolis, Minn. (William H. DeParcq, Minneapolis, Minn., on the brief), for Laurence L. Bonfoey.

Linus J. Hammond, St. Paul, Minn. (Cummins, Cummins, Hammond & Ames, St. Paul, Minn., on the brief), for Haughton Elevator Co.

Before SANBORN, COLLET and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Bonfoey, plaintiff below, and hereinafter so designated, brought this action against Blackhawk Hotels Company, hereinafter called Blackhawk, operator of the Lowry Hotel in St. Paul, Minnesota, and Haughton Elevator Company, hereinafter called Haughton, which had contracted to maintain the elevators in the Lowry Hotel, for damages suffered in the fall of a passenger elevator in the Lowry Hotel, which elevator the plaintiff was riding as a paying hotel guest. Liability is predicated upon negligence. The jury by answers to special interrogatories found both Blackhawk and Haughton guilty of negligence. The jury also fixed the amount of damages which is not in controversy on appeal. The court, upon Haughton's motion for judgment notwithstanding the verdict reiterating the grounds upon which Haughton had asked for a directed verdict, set aside the jury's finding that Haughton was negligent, and entered final judgment against the plaintiff upon his claim against Haughton. The court overruled Blackhawk's motion for a directed verdict and judgment notwithstanding verdict, and entered final judgment in favor of the plaintiff against Blackhawk. Blackhawk had filed a cross complaint against Haughton for indemnity or contribution in the event plaintiff recovered against Blackhawk, on the basis that plaintiff's injuries were solely caused by the negligent maintenance of the elevator by Haughton. The court entered final judgment denying Blackhawk relief against Haughton.

The plaintiff appeals from judgment dismissing his claim against Haughton. Blackhawk appeals from the judgment rendered against it in favor of plaintiff and from the dismissal of its cross complaint against Haughton.

Jurisdiction based upon diversity of citizenship has been established.

The accident here involved occurred on November 8, 1952, at about 6:30 p. m. It is admitted that the elevator fell from the third floor of the Lowry Hotel into the pit in the sub-basement, a distance of about 45 feet. The elevator carried nine persons which was not an overload. After the elevator left the third floor there was a clicking noise and the operator exclaimed, "I can't stop it." The operator testified he brought the control lever to neutral position and then to the up position, but these movements did nothing to stop the descent of the elevator. The operator also said he pushed the emergency stop button about the time the elevator struck the bottom of the shaft. It is uncontroverted that the operator pushed some button in addition to moving the control lever. The emergency stop button and the generator stop button are located near each other, and it is the contention of Haughton that the operator inadvertently pushed the generator stop button instead of the emergency stop button. Carl Becker, the elevator operator at the time, was 17 years old, and had worked for the Lowry about a month as an elevator operator. Upon commencing to operate the elevator he received about fifteen minutes instruction from another operator. He had no city license to operate an elevator and had been unable to get one largely because he had been unable to find the party issuing such licenses in his office.

The elevator here involved was installed approximately 25 years prior to the accident, and since its installation it had had adequate care and maintenance including replacement of worn or broken parts, but there had been no modernization of the elevator by adding new or improved equipment.

Prior to the accident the elevator had operated in a normal manner, and regular inspections by Haughton, the city, and the insurance carrier had revealed no defects. After the accident numerous tests were made of the elevator by Haughton, the city inspector, and representatives of Blackhawk, and all of the safety devices, including those controlled by the operator and those over which he had no control, were properly working, except for certain matters in connection with the governor, the roller on the final limit switch, and the counterweights, all of which will be later discussed.

Blackhawk asserts that it is entitled to a reversal for the following reasons:

I. This is a non-jury case, the jury's answer to the interrogatories are advisory only, and upon the record this court can fix and establish the rights and obligations of all of the parties regardless of form so as to accomplish justice.

II. Plaintiff has failed to prove negligence on the part of Blackhawk either by res ipsa loquitur or otherwise, and its motions for a directed verdict and judgment notwithstanding the verdict should have been sustained, and the court erred in submitting to the jury Blackhawk's liability to the plaintiff for any negligence of which Haughton might have been guilty upon the non-delegable duty theory.

III. There was sufficient evidence to support the finding of the jury that Haughton was negligent, and accordingly the court erred in setting aside such finding and determining as a matter of law that Haughton was not negligent.

IV. The court erred in dismissing Blackhawk's cross complaint against Haughton for indemnity or contribution.

The plaintiff's appeal is based upon his contention that the evidence supports the jury's finding that Haughton was negligent. The plaintiff's contention in this respect is substantially the same as Blackhawk's third contention above set out, and will be discussed with Blackhawk's similar contention hereinafter.

We will now consider the errors urged.

I. We find no merit in Blackhawk's first assignment of error. The plaintiff asked for a jury trial. The case was tried to a jury. The jury was properly instructed as to the applicable law, and by answer to special interrogatories the jury found (1) Blackhawk's operator was negligent, (2) Haughton was negligent in the performance of its duty under its maintenance contract, and (3) Blackhawk was also guilty of other negligence in addition to that arising out of the negligence of its operator and Haughton's negligence. All such findings also included a finding that negligence was a proximate cause of the accident. Additional interrogatories were answered fixing damages, and a general verdict was rendered for the plaintiff against both Blackhawk and Haughton. As to the method of submission the court in its memorandum decision states:

"At the trial, upon stipulation of counsel, certain factual issues involved in this lawsuit were presented to the jury on certain interrogatories. It was agreed that, upon these interrogatories as answered by the jury, and upon the general verdicts submitted to and answered by the jury on the issues as between plaintiff and defendants, the Court would make findings of fact and conclusions of law and dispose of the issues which were presented by the cross complaint or third-party action herein."

We believe the foregoing statement fairly describes the method in which this case was submitted. We believe that it was the intention of both the court and the parties that the fact issues were to be determined by the jury. A submission such as this is authorized by Rule 49 of the Federal Rules of Civil Procedure, 28 U.S.C.A. No authority has been cited or found to support Blackhawk's contention that the trial here was not a jury trial, at least insofar as it related to the issues asserted by the plaintiff against Blackhawk and Haughton. The issues raised by Blackhawk's cross claim against Haughton were not submitted to the jury and were to be determined by the court.

Moreover, even in a trial to the court, under Rule 52(a) of the Federal Rules of Civil Procedure findings of fact can not be set aside unless they are without adequate evidentiary support or induced by an erroneous view of the law. Pendergrass v. New York Life Ins. Co., 8 Cir., 181 F.2d 136; Noland v. Buffalo Ins. Co., 8 Cir., 181 F.2d 735; Dierks Lumber & Coal Co. v. Barnett, 8 Cir., 221 F.2d 695. We believe that Blackhawk's contention here is in substance that the court should try the case de novo on the record. A similar contention was made in the Dierks Lumber & Coal Co. case and rejected. The jurisdiction of this court is appellate and it has no right to retry the issues of fact or substitute its judgment with respect to such issues for that of the trial court. The findings of the trial court can not be set aside unless there is no substantial evidence to sustain such findings, or unless the findings are induced by an erroneous view of the law.

II. The jury by its answers to the interrogatories has said that Blackhawk was negligent in the operation of its elevator, and was also negligent in connection with the type of elevator facilities furnished. The trial court in ruling upon Blackhawk's motion for judgment notwithstanding the verdict found that the evidence supported a finding of negligence against Blackhawk which was a proximate cause of the accident. Blackhawk here seeks to avoid liability primarily on the theory that under its contract with Haughton it was Haughton's obligation to maintain the elevator in safe condition, and that if the accident was caused by the failure of any of the safety devices to function properly such a result was brought about by Haughton's negligence. The trial court...