City Nat. Bank v. Pigott

• Citation: 270 S.W. 234
• Decision Date: 18 February 1925
• Docket Number: (No. 7297.)
• Parties: CITY NAT. BANK v. PIGOTT et ux.
• Court: Court of Appeals of Texas

Page 234

270 S.W. 234

CITY NAT. BANK v. PIGOTT et ux.

(No. 7297.)

Court of Civil Appeals of Texas. San Antonio.

February 18, 1925.

Rehearing Denied March 18, 1925.

Appeal from District Court, Bexar County; Wm. S. Anderson, Judge.

Action by Edw. Pigott and wife against the City National Bank. Judgment for plaintiffs, and defendant appeals. Affirmed.

Taliaferro, Cunningham & Moursund and R. F. Spencer, all of San Antonio, for appellant.

Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for appellees.

SMITH, J.

The case appears to be quite simple, and is essentially one of fact. The City National Bank operates a bank and office building in the city of San Antonio. The building is served by three passenger elevators, one of which at the time in question was operated by Edward Young, a 16 year old boy. On January 3, 1922, Mrs. Pigott, one of the appellees, entered this particular elevator at the street floor, destined to the fifth floor. Several others took passage in the same elevator destined to various other floors. One passenger left the car at the second floor, another at the third. None had called for the fourth, but the operator stopped the car at that floor, and opened the door, whereupon Mrs. Pigott, mistakenly assuming this to be the fifth floor, undertook to get off. While she was in the act of leaving the car and was stepping through the doorway thereof, the door was suddenly closed upon her, pinning her to the door jamb. Subsequently, joined by her husband, she brought this suit against the bank to recover damages for personal injuries she claimed to have sustained in the accident. She sued for $15,000; the jury awarded her $5,000. The bank has appealed from the resulting judgment.

The evidence, construed most favorably to appellees, showed that one passenger left the car at the second floor, and upon starting up from there the operator called for "floors." Mrs. Pigott answered "5," and the operator repeated the number "5," verifying her call. Another passenger called for the third floor, and the operator stopped the car and let him off there. No one had called for the fourth, but when the car reached that floor the operator stopped it, and opened the door. Mrs. Pigott, seeing no one was there to take passage, and not knowing the number of that floor, assumed that she had reached her destination and that the door was being held open for her. Accordingly, she emerged from the group of passengers, and started out of the elevator, but as she was in the act of stepping through the doorway the door, released by the operator and suddenly closing, struck and pinioned her. The operator released her, she stepped out into the hallway, and the car continued on its upward trip.

The jury found, first, that the operator caused or permitted the door to close upon Mrs. Pigott as she was leaving the elevator; second, that the operator failed to keep a proper lookout, before closing the door, to ascertain whether or not any one was leaving the elevator, and that each of these acts constituted negligence directly causing or contributing to the injuries complained of. The jury further found that Mrs. Pigott was not guilty of negligence in failing to warn the operator that she intended to leave the elevator at the place of the accident, and that she did not step in the way of the elevator door while it was being closed, thus acquitting her of contributory negligence.

Appellant first contends that the court should have directed a verdict for appellant, but for reasons hereinafter shown we overrule this contention, which is raised in points 1 and 2 in appellant's brief.

The jury found that the elevator operator negligently caused or permitted the door to close upon Mrs. Pigott as she was leaving the car, and appellant complains of the submission of this issue and the finding of the jury thereon. We will consider this finding with the correlated finding that Mrs. Pigott did not step in the way of the elevator door while it was being closed. It is conceded that the closing door struck Mrs. Pigott as she was in the act of passing through the doorway. Appellant's contention is that she stepped in the path of the moving door, while appellees contend the door was released as she was in the act of crossing that path and struck her before she cleared the entrance. The distinction here sought to be drawn may appear to be quite fine, but the parties clearly drew it in their respective pleadings. The theory seemed to be that the accident was the proximate result either of the act of the operator in releasing the door upon Mrs. Pigott as she was passing in front of it, or of the act of the latter in stepping in front of it while it was in the process of closing; that the affirmative act of the operator on the one hand, or of the passenger on the other, caused the accident. The trial court took cognizance of this distinction and submitted the issues in the very form pleaded by the respective parties, and the jury finally vitalized it by their findings on those issues. We conclude that the record warranted the submission of the issues, and that the evidence was sufficient to support the findings. Appellant contends that the submission of the first issue, as to the act of the operator in closing the door upon Mrs. Pigott, was calculated in the form given to lead the jury to believe that the court was of the opinion that appellant was guilty of negligence, and influenced the jury to later find that the operator failed to keep a proper lookout. We overrule these contentions. If the issue was a proper one, as we have held, it could hardly have been submitted in simpler form. It was not calculated to impress the jury that the court was of the opinion that appellant had been negligent, any more than the submission of the converse issue indicated to the jury that the court believed Mrs. Pigott had been guilty of negligence. Nor do we...