Bock v. Fellman Dry Goods Co.

• Decision Date: 11 June 1919
• Docket Number: (No. 66-2818.)
• Citation: 212 S.W. 635
• Parties: BOCK v. FELLMAN DRY GOODS CO.
• Court: Texas Supreme Court

Page 635

212 S.W. 635

BOCK v. FELLMAN DRY GOODS CO.

(No. 66-2818.)

Commission of Appeals of Texas, Section A.

June 11, 1919.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Kate Bock against the Fellman Dry Goods Company. From a judgment of the Court of Civil Appeals (173 S. W. 582), affirming a judgment for defendant, plaintiff brings error. Judgments reversed, and cause remanded for another trial.

Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, and Ramsey, Black & Ramsey, of Austin, for plaintiff in error.

Mark H. Royston, of Galveston, and Gill, Jones & Tyler, of Houston, for defendant in error.

STRONG, J.

The plaintiff in error brought this action against the Fellman Dry Goods Company, a private corporation, to recover damages for the death of her son, alleged to have been caused by the negligence of defendant. The trial court, after hearing the evidence, instructed the jury to return a verdict for defendant; and the judgment rendered thereon was affirmed by the Court of Civil Appeals. 173 S. W. 582.

The action of the trial court in withdrawing the case from the jury is the only ruling of which complaint is made.

The facts, briefly stated, show that deceased, a boy about 14 years of age, was employed by defendant, and was killed while in the performance of the duties of his employment by falling into an open elevator shaft or well in the store building of defendant in the city of Galveston. Upon the occasion of his injuries, deceased had been sent from the first floor of the building to the second floor into the elevator room, for the purpose of getting some empty boxes. He used the stairway in going to the second floor. Shortly after deceased reached the elevator room, another employé, by the name of Grimm, ran the elevator to the second floor, and, leaving the platform or floor of the elevator flush with the floor of the elevator room, passed through the room where the boy was getting the boxes into the salesroom. Grimm had been in the salesroom but a short time, when he heard a noise like a large box falling. He immediately returned to the elevator shaft, and found that the elevator had ascended to the third floor of the building, and that deceased had fallen to the bottom of the shaft, thus receiving injuries resulting in his death.

The plaintiff alleged that defendant was guilty of negligence in failing to use due care to furnish deceased a reasonably safe place to work, in that: (1) The room in which he was working at the time he met his death, and in which the elevator shaft was situated, was poorly lighted; (2) the floor of said room, and especially near the opening of the elevator shaft, was greasy and slippery; (3) the gate to the elevator, and especially the closing equipment thereof, was defective; and (4) the elevator shaft was insufficiently guarded.

The only testimony which we regard as material to the determination of the question presented is as follows:

George Peters testified:

"I am 18 years old. I reside in Galveston, Tex. On February 11, 1911, I was working for the Fellman Dry Goods Company. On said date I was acquainted with a boy named Jennett Bock. I saw Jennett Bock on February 11, 1911. He was in the freight room on the second floor of the new building of the company, at the north end, where the company then kept all the empty boxes. These were generally pasteboard boxes, and I was in there getting some empty boxes for the first floor wrapping counter in the new building. Jennett Bock was in there when I was. I last saw him with an armful of these boxes. He was gathering up more when I left. It was about half past 12, noon, or perhaps 25 minutes after 12 when I last saw Jennett Bock alive. The room in which I saw Jennett Bock, as near as I can figure it out and remember, was 12 or 14 feet wide and about 18 or 20 feet long. There was one window to it toward the alley on the north wall. The window was frosted glass covered with netting. The room was inclosed on the east and south sides by frosted glass partitions and frames that did not go quite up to the ceiling. There was a door leading into it from the salesroom on the south. The freight elevator was operated up and down on the west side of this room, in an opening in the west wall. There was a big wooden gate with pulleys and weights to the gate used to keep the elevator shaft closed when the elevator platform was not still and standing even with the floor of the room. It was not very light in the room. It was pretty dark in there all the time. You could see upward where the light was where the partitions did not go up quite to the ceiling. You could hardly see the floor where you was walking at all. The floor was dirty and greasy. It was slippery, especially near the opening of the elevator shaft where the gate was. There was great big boxes in the north end and corner, for trash. There was empty shirtwaist pasteboard boxes and other ready-made boxes stacked up all around the other sides of the room nearly as far as the frosted glass partitions went. * * * About 10 minutes after I left Jennett Bock in the freight...