Colorado Mortg. & Inv. Co. v. Rees

• Decision Date: 30 September 1895
• Parties: COLORADO MORTG. & INV. CO. v. REES. [1]
• Court: Colorado Supreme Court

42 P. 42

21 Colo. 435

COLORADO MORTG. & INV. CO. v. REES. ^[1]

Supreme Court of Colorado

September 30, 1895

Appeal from district court, Arapahoe county.

Action by Joseph R. Rees against the Colorado Mortgage & Investment Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action brought by Joseph R. Rees against the Colorado Mortgage & Investment Company to recover for injuries alleged to have been suffered through its negligence. The company is and was at the time of the injuries, the owner of, and in full control of, the Barclay Block, an office building situate on the corner of Larimer and Eighteenth streets, in the city of Denver, and an elevator operated therein for the use of its tenants and their patrons. After describing in detail the character of the building and the elevator way and the mode of operating the elevator, and alleging that the same was accessible only through a sliding door on each floor, which could not be opened from the hall way leading thereto, but only by the defendant and its employés, from within the elevator, the complaint alleges: 'Fourth. That the said door opening into the said elevator way, shaft, or opening on the said ground floor or main floor of said building, and the fastenings, fixtures, and appliances thereof, at and during the time hereinafter mentioned, were so negligently and carelessly built and constructed, and were so carelessly and negligently managed and controlled, and had so become out of repair, and the said hall ways and entrances leading up to and adjoining the aforesaid door and entrance on the floor last aforesaid were so dark and void of light as to render the said shaft or elevator way exceedingly dangerous. Fifth. That on the 28th day of May, A. D. 1891, and between the hours of 5 and 6 on the afternoon of said day, the said defendant, well knowing the premises, negligently and wrongfully left the said door on the said ground floor open, and the said elevator way or shaft unguarded, and without any signal or warning, in consequence whereof the plaintiff aforesaid, while lawfully and properly on the said ground floor in the building aforesaid, believing that the elevator car was there in the said shaft on the said ground floor, in waiting and readiness to receive passengers for carriage, and induced to so believe by the fact that the said door was standing open as aforesaid, and believing that by entering said door he would be stepping into the aforesaid elevator car, entered and passed through said door or doorway; and the said elevator car not being in that portion of the shaft, but at the top thereof at that time, without any fault on his part, the said plaintiff fell into, down, and through the said elevator way or shaft, from the ground floor of said building to the lower floor or basement thereof.' The answer of the defendant specifically denies these allegations, and, as a further defense, in substance avers: That the elevator and all approaches thereto were carefully and safely built, and were, at the time plaintiff received the injuries complained of, being operated in a careful manner by a competent person; that in leaving the lower floor, at the time mentioned, with the elevator, the operator closed the door, and left the same in a safe and secure condition; and that a trespasser upon the premises, without the knowledge of defendant, opened the door, and left the same standing open; and that plaintiff, without due or proper care on his part in observing the condition of the door and shaft, negligently and carelessly walked into the shaft. Upon the conclusion of plaintiff's testimony, defendant interposed the following motion for a nonsuit: 'Because the testimony on the part of the plaintiff does not show any liability on the part of the defendant, and because the testimony on the part of the plaintiff shows that the accident resulted from the contributory negligence of the plaintiff, rather than from the negligence of the defendant.' This motion was denied. Trial resulted in a verdict and judgment in favor of plaintiff for $6,885 and costs. To reverse this judgment, defendant company prosecutes this appeal.

Thomas, Bryant & Lee and Hugh Butler, for appellant.

R. D. Rees, E. A. Ballard, and Charles J. Hughes, Jr., for appellee.

GODDARD J. (after stating the facts).

The testimony introduced on the part of the plaintiff was to the effect that the lock on the elevator door fastened with a spring catch, and when locked, if the spring was not broken, no one could open the door from the outside; that at the time of the injuries complained of, and for a long time anterior thereto, this spring was broken, and by reason of such defect the catch would unlatch by the rebound of the door when shut with any force, and, when closed, a push from the outside, and even the weight of the door itself, would raise the latch; that, at the time mentioned, the elevator was in the upper part of the shaft, and the door wide open; and that, by reason of the insufficient light, plaintiff did not discover the absence of the elevator, stepped into the shaft, and was injured.

Counsel for appellant, in their original brief and argument, group and discuss the numerous errors assigned under three heads: First, the refusal of the court to grant defendant's motion for a nonsuit; second, error in regard to the admission of, or refusal to admit, testimony; third, error in the giving or refusing of instructions.

Upon oral argument they advanced the further objection that there is a fatal variance between the evidence introduced on the part of the plaintiff and the act of negligence specifically averred as the cause of the injury. There was evidence introduced, without objection, tending to support the general allegations of negligence set forth in the complaint. Whether, therefore, the negligence proved differs from that alleged in the complaint is a question of fact, that is not before us for consideration, since no objection to the introduction of the evidence upon this ground was made in apt time, or the question of variance between the proofs and allegations raised by motion to strike out, or in any manner brought to the attention of the trial court. Questions of this nature should be made at the trial, when the objection, if well taken, may be cured by amendment. The rule upon this subject is well stated in the case of Libby v. Scherman, 146 Ill. 540, 34 N.E. 801, as follows: 'To present the question of variance as one of law, the evidence should have been objected to at the time it was offered on that ground, or, when the variance became apparent, counsel should have moved to exclude the evidence, or in some other appropriate way the question should have been so raised that the trial judge could have passed upon it; and, to properly raise the question in any of these modes, the variance should have been distinctly pointed out, so as to enable the trial judge to pass upon it understandingly, and to enable the plaintiff, if such course should become necessary, to obviate the objection by an amendment to the declaration.' Tognini v. Kyle (Nev.) 30 P. 829; Dikeman v. Norrie, 36 Cal. 94; Railway Co. v. Velie, 140 Ill. 59, 29 N.E. 706; Ames & Frost Co. v. Strachurski, 145 Ill. 192, 34 N.E. 48.

In support of the error assigned upon the refusal of the court to grant a motion for nonsuit, it is urged that the failure of the plaintiff to ascertain that the elevator was absent was in itself sufficient to show such carelessness on his part as would defeat a recovery. In this, counsel assume that an elevator is a place of danger; that it should be approached with great caution. On the contrary, a person has the right to assume that the owner and operator of an elevator will exercise that high degree of care that the nature of the business demands, and will see to it that the approaches thereto are reasonably safe, and that the doors to the shaft can be safely and securely locked, and are not negligently left open; and that he may safely enter when he finds the door open, without stopping to make a special examination. Tousey v. Roberts, 114 N.Y. 312, 21 N.E. 399. When the motion was interposed, the evidence before the jury tended to show that, because of the broken lock on the elevator door, the door was standing open; and that, owing to the inadequate light in the hall way, plaintiff failed to discover the absence of the elevator. Whether, under the circumstances thus shown, he exercised that degree of care which persons of ordinary prudence would exercise on approaching and entering the elevator, was a question of fact for the jury, and the motion was properly refused.

We cannot notice in detail the particular specifications of error predicated upon the admission and rejection of testimony. The main contention under this head is that the court erred in permitting plaintiff to show that the door in question was open at times antecedent to the accident, and that other persons came near falling into the shaft; for the reason that this testimony tended to show other and independent careless acts of the person in charge of the elevator at such times. It is clear that, if such was the purpose and effect of this testimony, it would be inadmissible; but that such was not the purpose and object for which it was introduced is evident when the theory upon which the case was tried is kept in view. The whole scope and tendency of the evidence introduced on the part of plaintiff was to show that the elevator door was open at the time of the accident because of the defective condition of the lock and, in corroboration of that claim, the evidence complained of was offered as tending to show a previous and continuous ...