Bock v. Fellman Dry Goods Co.

• Decision Date: 14 January 1915
• Docket Number: (No. 6737.)
• Citation: 173 S.W. 582
• Parties: BOCK v. FELLMAN DRY GOODS CO.
• Court: Texas Court of Appeals

173 S.W. 582

BOCK v. FELLMAN DRY GOODS CO.

(No. 6737.)

Court of Civil Appeals of Texas. Galveston.

January 14, 1915.

Rehearing Denied February 11, 1915.

Error from District Court, Galveston County; Clay S. Briggs, Judge.

Action by Kate Bock against the Fellman Dry Goods Company. From a judgment for

defendant on a directed verdict, plaintiff brings error. Affirmed.

Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for plaintiff in error. Gill, Jones & Tyler, of Houston, and Mart H. Royston, of Galveston, for defendant in error.

PLEASANTS, C. J.

This suit was brought by plaintiff in error against defendant in error to recover damages for the death of plaintiff's son, which it is alleged was caused by the negligence of defendant.

The petition alleges, in substance, that plaintiff's son, who at the time of his death was about 14 years of age and was in the employment of defendant, was killed while in the performance of the duties of his employment on February 11, 1911, by falling into an open elevator shaft or well in the store building of defendant, in the city of Galveston. It is alleged that the room in which plaintiff was performing his duties at the time he met his death, and in which the elevator shaft was situated, was poorly lighted; that the floor of said room, near the opening of said shaft, was greasy and slippery; and that the mechanism by which the gate closing the opening of said shaft was operated was out of repair and failed to close the gate as it should have done. The negligence relied on for recovery against defendant is thus charged in the petition:

"That the defendant knew that the plaintiff's said son was a small child about the age of 14 years, and that defendant was in duty bound to provide for the plaintiff's said son a safe and suitable place in which to work, and that it was in duty bound to have sufficient lights in and around its storehouse, so that plaintiff's said son could safely work, and that defendant wholly and negligently failed in said duties in all these matters; that defendant was in duty bound to keep the floor around said elevator clean and safe and to have the grease and other substances removed from said floor, so that plaintiff's said son would not slip on said floor when at work therein and thereupon, and that the defendant negligently failed to perform these duties to the plaintiff's son; that defendant was in duty bound to see to it that the entrance to said elevator shaft and well on said floor was securely fastened and barred by a gate or such other device as would be necessary to prevent plaintiff's said son from falling into or through said unguarded hole or shaft or well while at work, all of which defendant negligently failed to do, and that defendant's negligence in failing to have said hole and aperture closed and fastened at said time, while plaintiff's said son was working near said hole, was negligence; that the duty of inspecting said elevator and its appliances and the duty of seeing that the gates in front of the openings of said elevator were closed and fastened at all times when said elevator and its platform was not flush with said floor was a duty which defendant owed to the plaintiff's said son while he was working for it in the manner and place as aforesaid, and that the defendant wholly failed in all of these duties, and that all of said failures and omissions were negligence.

"And plaintiff further alleged that all of the negligent acts and omissions hereinbefore pleaded were the direct and proximate cause of the personal bodily injuries by her said minor son received and his consequent death, as hereinbefore pleaded.

"And plaintiff further alleged that defendant was guilty of negligence in the following matters and things, to wit: That defendant was negligent in sending said small son of this plaintiff to work in and near said dangerous open elevator and its shaft, and that defendant was further negligent in failing to see to it that the doors to said elevator shaft were securely closed and fastened, and was further negligent in leaving said shaft door open and unprotected in any manner at said time, and that said negligence was the proximate cause of the injuries and death of her said son."

Damages were sought in the sum of $15,000.

In addition to general denial, defendant filed pleas of contributory negligence, assumed risk, and negligence of a fellow servant, and further pleaded that the deceased was a trespasser in the elevator room at the time he was killed by falling into the elevator shaft. After hearing the evidence, the trial court instructed the jury to find a verdict for the defendant, and, upon the return of such verdict, judgment was rendered in accordance therewith.

The evidence shows that Jennett Bock, the son of plaintiff, was about 14 years old at the time of his death. He was in the service of defendant at the time of his death; his duties, generally speaking, being to assist other employés in the store in wrapping and packing goods for delivery to customers. It may be inferred from the testimony that, on the occasion on which the accident occurred which resulted in his death, he had been sent to the room on the second floor of the store building, known as the elevator or freight room, for the purpose of getting empty boxes stored in said room, and which were needed in the salesroom on a lower floor of the building for use in packing goods for delivery to purchasers. The freight elevator, which was used for conveying goods to and from the basement and the upper stories of the building, ran up through this room. Jennett Bock did not use the elevator in going to this room, and he had been warned and instructed never to use it. The testimony introduced by plaintiff to show the circumstances in which the accident occurred 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 ...