Burgess v. Stowe

• Decision Date: 14 July 1903
• Citation: 134 Mich. 204,96 N.W. 29
• Court: Michigan Supreme Court
• Parties: BURGESS v. STOWE.

96 N.W. 29

134 Mich. 204

BURGESS v. STOWE.

Supreme Court of Michigan

July 14, 1903

Appeal from Circuit Court, Kent County, in Chancery; Willis B Perkins, Judge.

Action by Harry W. Burgess against W. Arthur Stowe. From a judgment for plaintiff, defendant appeals. Reversed.

Butterfield & Keeney, for appellant.

H. B Fallass, for appellee.

CARPENTER J.

This is a suit brought to recover damages for personal injuries. Plaintiff recovered in the court below. Defendant asks this court to reverse that judgment on the ground that the testimony did not make a case for the consideration of the jury, and upon other grounds, which, as far as needful, will be discussed in this opinion.

1. Did the court err in submitting the case to the jury? Defendant contends that there was no evidence of his negligence, and that plaintiff was, as a matter of law, guilty of contributory negligence. The determination of this question requires an examination of the plaintiff's testimony.

Plaintiff was a newspaper publisher, and defendant was engaged in the business of selling paper at his store in Grand Rapids. On the afternoon of November 14, 1901 plaintiff visited defendant's store for the purpose of examining and purchasing a supply of paper. The paper which he wished to examine was on one of the upper floors in defendant's store. One of the means of reaching said floor was an elevator. This elevator ran in an open shaft, extending from the top of the building to the basement. The opening on the ground floor was six feet high and five feet and one inch wide. It was guarded by two doors, which were generally kept open, and a gate made of slats, which was about three feet high, and of the same width as the opening. One desiring to enter the elevator raised this gate to the top of the opening and passed under it into the elevator. The elevator was used for transporting both freight and passengers. No one was especially charged with the duty of guarding or operating it. Any one of many employ�s of defendant operated it, as occasion demanded. The operator controlled its movements by means of a perpendicular cable, passing through a corner of the elevator, and extending from the top to the bottom of the shaft. In the course of the conversation (which occurred on the ground floor of defendant's store) between the plaintiff and the defendant respecting the proposed sale of paper, defendant suggested that both he and the plaintiff go upstairs and examine said paper. Upon this being assented to, defendant led the way to the elevator. The doors were open and the gate down. Defendant raised the gate, stepped back, and in a louder tone than before said 'Elevator!' Plaintiff, supposing this to be an invitation to enter the elevator, stepped forward, and fell down the elevator shaft, and received the injuries complained of. The testimony makes it quite clear that defendant's purpose in raising the gate was to enable him to reach the cable which controlled the car, which, as a matter of fact, was on some floor above that upon which he and plaintiff stood; that he spoke the word 'Elevator!' as he did, in accordance with the custom in his store, as a warning to all who might hear him that he proposed to use the elevator, and not as an invitation to plaintiff to enter the same.

There is some dispute as to whether or not the shaft was well lighted; plaintiff saying that the place was quite dark, while defendant's testimony indicates that it was quite light. We think it clear, however, that had plaintiff been called upon to give particular attention to where he was stepping he could not have failed to see that the elevator was not before him.

To us it seems clear that the jury was authorized by this testimony to find that the action of the defendant amounted to an invitation to the plaintiff to step forward into this shaft, and that in acting under this invitation plaintiff was not guilty of contributory negligence. Defendant has called our attention to a number of cases in which it has been held that a person injured by falling down an elevator shaft or into an open excavation cannot recover. We shall not attempt to discuss these cases. All of them are, in our opinion, inapplicable. In those cases the injured party was not, as in this case he was, acting under what he had a right to believe was the invitation of the defendant. This important circumstance not only created a duty on the part of the defendant, but had a very important bearing in limiting the obligation of the plaintiff to care for himself. Plaintiff certainly was not under the same obligation to guard against dangers that he would have been had no invitation been extended. We think, therefore, that the trial court did not err in refusing to direct a verdict for the defendant.

2. It is claimed that the court erred in refusing to instruct the jury:

(a) 'If you find that Mr. Stowe, upon raising the gate, called 'Elevator?' in a loud tone of voice, and that this was with the intent or purpose on his part to sound a warning to any one above who might be using or about to use the elevator at that time, then such act on his part would not be negligence.' This was not error. Plaintiff was with defendant, and it was competent for the jury to find that an ordinarily prudent man would have apprehended that raising the gate and shouting 'Elevator!' might be accepted as an invitation to step forward. Defendant's liability in this case does not depend entirely upon his intent or purpose, as assumed in the above request.

(b) It was not error to refuse defendant's request that there could be no recovery against the defendant because of the supposed defective or faulty construction of the elevator car or shaft, or because Mr. Stowe was without skill in the management of the elevator. The charge of the court made it clear to the jury that the plaintiff could not recover unless he received his injury in acting upon the invitation of defendant. This clearly meant that there could be no recovery on account of defendant's want of skill, or because the elevator or some part of it was defective. Cases might arise in which it would be the duty of the court to give such requests in order to make clear the issue presented to the jury. This, however, is not such a case.

(c) Nor was it error to refuse to charge, as requested by defendant 'If on the morning of November 14th it was light enough in the elevator entrance so that Mr. Burgess could have seen that the elevator car was not in the shaft, and he did not see or notice that it was not there merely because he did not look, then I charge you that his failure to use his eyes was contributory negligence, and he is not entitled to recover.' Under the circumstances of this case, it was competent for the jury to decide that the...