Camp v. Curry-Arrington Co.

• Decision Date: 30 January 1930
• Docket Number: 19804.
• Citation: 151 S.E. 837,41 Ga.App. 53
• Parties: CAMP v. CURRY-ARRINGTON CO.
• Court: Georgia Court of Appeals

151 S.E. 837

41 Ga.App. 53

CAMP v. CURRY-ARRINGTON CO.

No. 19804.

Court of Appeals of Georgia, Second Division

January 30, 1930

Rehearing Denied Feb. 18, 1930.

Syllabus by the Court.

In this action to recover damages for personal injuries received by the plaintiff when he fell into an open elevator shaft in a building of the defendant, the evidence involved issues of fact which should have been submitted to the jury, both as to the negligence of the defendant and as to the want of care on the part of the plaintiff. A verdict for the plaintiff would have been authorized, and the court therefore erred in granting a nonsuit.

Error from Superior Court, Floyd County; James Maddox, Judge.

Action by R. C. Camp against the Curry-Arrington Company. To review a judgment of nonsuit, plaintiff brings error. Reversed.

Jas. F Kelly and Porter & Mebane, all of Rome, for plaintiff in error.

Maddox Matthews & Owens, of Rome, for defendant in error.

BELL J.

The exception in this case is to a judgment of nonsuit, the action being to recover for injuries received by the plaintiff in falling through an elevator shaft in a building of the defendant.

The petition alleged substantially the following facts: Camp, the plaintiff, was injured by failing into an elevator shaft in the store of Curry-Arrington Company, the defendant, while undertaking to deliver ice into the basement of the store by means of the elevator. The building consisted of three stories besides the basement, all of which were reached by the elevator. The defendant carried on a drug business, and in connection therewith manufactured ice cream in the basement. In the business of making and selling ice cream the defendant used large quantities of ice which it bought from Rome Ice Company, and which it had been accustomed to buy for a number of years.

On the morning of June 1, 1928, the plaintiff, with one Adams, both of whom were in the employment of the ice company, went to the place of business of the defendant for the purpose of delivering ice in the usual manner. The ice was carried in a truck driven by Adams and which he stopped near the building for the purpose of making a delivery for the defendant. This was the first time that the plaintiff had assisted in delivering ice to the defendant, although Adams had been making such deliveries for a long time. When the truck was stopped the plaintiff delivered a small piece of ice to a barber shop across the street, while Adams went into a room at the rear of the defendant's building, and to the elevator shaft located in this room, to see that the elevator was properly placed on a level with the first floor, so that the ice might be placed thereon for the purpose of being carried into the basement. Adams found the elevator at rest in the basement, and brought it to a level with the first floor, where he left it with the door thereto open. He then returned to the ice truck, from which he and the plaintiff unloaded a 200-pound block of ice, which the plaintiff with a pair of ice hooks dragged across the room toward the elevator as placed by Adams. In the meantime some person, without the knowledge of the plaintiff or Adams, had moved the elevator without closing the door thereto, and, the shaft being located at a place where there was but little light, the plaintiff, in attempting to drag the ice across the floor and onto the elevator, was precipitated through the shaft to the bottom of the basement and seriously injured. The employees of the ice company, including Adams, had been accustomed to make deliveries in the manner attempted on the occasion in question, and were expected by the defendant to use the elevator for this purpose.

The petition contained the following allegations of negligence "That the defendant, while your petitioner was in the discharge of his duty to and toward the defendant, negligently and carelessly ran said elevator from said first floor to the defendant's said building to the second floor, and upon so doing, left open, and failed to close, the door leading from said first floor into said elevator, without any warning or notice whatsoever to your petitioner that said elevator had been moved from said first floor to said second floor, and, the door thereof left open and not closed, said defendant knowing that your petitioner at said time was in the act of putting said ice into the defendant's store as aforesaid, and knowing that plaintiff would use said elevator to put said ice on for the defendant. That the defendant knew that said elevator and the space immediately in front of said elevator was in a darkened condition, and that it was with difficulty that the true condition inside of said elevator-shaft could be told, especially when one went from the outside of said building, from the sunlight, into said dark place in, around, and near said elevator. *** That defendant was negligent in maintaining said elevator in said darkened condition in said elevator-shaft and around said elevator-shaft."

We think the court erred in granting the nonsuit. Under the evidence the jury could have found that the plaintiff had proved his case as laid, and it did not conclusively appear that he was not in the exercise of ordinary care. The evidence failed to account directly for the removal of the elevator, but tended to show that no other persons were about the place, except the officers or employees of the defendant and the plaintiff and his coemployee Adams, and that neither the plaintiff nor Adams was responsible for its removal. Although the elevator was used only for private purposes, and was not for the public or passengers, the jury still could have found from the evidence that the plaintiff was an invitee, since it was customary for the ice company to make deliveries to the defendant's basement by means of the elevator, and since the evidence authorized the inference that the defendant should have expected that some employee of the ice company would use the elevator for this purpose at or about the time in question.

It is true that the plaintiff had not before assisted in making any delivery of ice to the defendant, and that for a long period of time the deliveries had been made by Adams either alone or in company with some one other than the plaintiff. Adams testified that he himself "went to work on this truck under another man," who instructed him to carry the ice "down in the basement. The other man always done that. *** I guess the store opens there at 7 o'clock in the morning. It was always open when we delivered the ice there."

From this and other evidence it was a reasonable inference that the defendant had not agreed to accept deliveries of ice from Adams only, or from any particular employee of the ice company, to the exclusion of others, and thus the jury could have found that any employee whom the ice company elected to send with the ice, or as many employees as were necessary for this purpose, but no more, had the right to use the premises, including the elevator, for the purpose of making such delivery.

We are therefore of the opinion that, while the defendant may have been under no duty to anticipate that the plaintiff as a particular person would make the delivery on the day of his injury, the evidence would have authorized the conclusion that any proper person or persons whom the defendant might send for this purpose were invited to enter for the purpose of attending to the matter in hand.

As to the immediate circumstances of the injury, Adams had just gone into the building to arrange the elevator, and at the same time had spoken to some employee of the defendant and ascertained the quantity of ice wanted. Not more than three minutes elapsed between the time of his placing the elevator at the first floor and the bringing in of the ice by the plaintiff. He informed the plaintiff that the elevator was ready, and the plaintiff proceeded with the task of placing the ice thereon. The plaintiff testified that the room was to an extent in a darkened condition, that the floor was discolored, and that he thought"the elevator was there, because it looked just like the color of the floor." The elevator had in fact been carried to the second floor and the shaft was left open.

Perhaps it would not have been negligent for the defendant to remove the elevator (if it did), had the operator closed the door so as to prevent another from falling into the shaft; but the jury were authorized to find that the open door tended to indicate that the elevator remained, as left by Adams, in position for use by the plaintiff.

In view of all the facts and circumstances, could the jury have found from the evidence that the defendant was responsible for the removal of the elevator, with the attendant failure to close the door, as the result of which there was created the dangerous...