Colorado Mortg. & Inv. Co., Ltd. v. Giacomini

Decision Date02 June 1913
Citation55 Colo. 540,136 P. 1039
PartiesCOLORADO MORTGAGE & INVESTMENT CO., Limited, v. GIACOMINI.
CourtColorado Supreme Court

On Petition for Rehearing, December 1, 1913.

Appeal from District Court, City and County of Denver; Harry C Riddle, Judge.

Action by Margaret Giacomini against the Colorado Mortgage &amp Investment Company, Limited, and another. Judgment for plaintiff, and defendant named appeals. Affirmed, and rehearing denied.

This action was instituted by the appellee against P. W. Copeland and the appellant to recover damages sustained by her upon June 27, 1908, occasioned by her falling down the elevator shaft in the Columbia Hotel, situate in the city of Denver. It is alleged that the accident was caused by the negligence of the defendants in permitting the elevator and appurtenances thereto to be and remain out of repair. Judgment was in her favor against both defendants in the sum of $10,000. The appellant brings the case here on appeal.

The appellant was the owner of the hotel, its furniture and fixtures. It was being operated under a written lease by its codefendant, P. W. Copeland. This lease was for the term of one year, commencing November 1, 1907. It calls for the Columbia Hotel situate on the corner of Seventeenth and Market streets, East Denver, together with the furniture fixtures, machinery, cooking utensils, beds, bedding, etc as enumerated in a schedule, excepting from the lease certain storerooms fronting on Seventeenth street occupied by others. The lease indicates that the property was rented fully furnished for a hotel. It provided that the lessor should not be required to bear any expenses for supplies of any kind nor for heating, lighting, or repairing, nor for repairs to furniture, fixtures, or utensils, nor for any other purposes except taxes, insurance, and water rent; that the lessee would keep the elevator and all other machinery in good order, and, in addition to the rent, pay to the first party annually, when due, one-half the costs of accident insurance policies, covering accidents in connection with the elevator; that the lessor reserved the right at all times to enter and inspect the premises, and if, in its judgment, the premises, furniture, fixtures, machinery, and all other equipments were not being properly cared for, or the business not being managed in a manner satisfactory, it had the right to terminate the lease by giving 10 days' notice previous to the end of any calendar month; that the lessee agreed to keep the interior of the hotel in repair and good order, including all articles therein, and in case the articles should wear out, become broken or damaged, to replace them; that all articles placed in the hotel in replacement of any mentioned in the schedule should be the property of the lessor; that if the property became untenantable by reason of fire, or otherwise, the rents should cease until the premises were rebuilt, but nothing should be construed to compel the lessor to build or repair in case of destruction, unless it so desired. Another clause reads: 'It is agreed by the parties hereto that all expenses for repairs to boilers, elevators or pumps shall be borne equally by both.' It is shown that at the time of the accident the appellant had a $5,000 insurance policy in force, protecting it against accidents caused by this elevator.

The hotel fronts upon Seventeenth street, one of the main thoroughfares of the city between the Union Depot and the main portion of the business district, being about three blocks from the depot. It has four stories and a basement, and contains about 100 sleeping rooms. The elevator is situate in the main office or lobby, about 30 feet from the front entrance. It is back of the business office. There is a porch in front of this room. The light in the daytime comes from the front of this room, and that which reflects down from the fourth story of the building through a skylight in the top of the elevator shaft. The elevator cage has a top or tight roof. Upon account of these facts the light in that portion of this room is not good, and is always poor in the elevator shaft at this floor. One former employé testified: 'To be able to see around and see what you are doing the lights have to be lit in the office in the afternoon. * * * If it was not a bright day and the lights were not lit it was almost impossible at that time of day to read a name on a package while in the elevator at that floor.' Another witness says: 'Never light enough in the elevator to read a newspaper.' There were no lights lit at the time of the accident. According to the evidence of the plaintiff's witnesses the elevator was out of repair at the time of the execution of the lease, and thus continued up to the time of the accident. The printed abstract of the record is so meager that it is nearly impossible to get an intelligent idea of the condition of the elevator therefrom; but, as we understand it, the substance of these defects was in its machinery which caused leaking of the cups in the main valves, or the packing in the piston leaking, on a wearing of the cups or the valves, some of which created a rumbling noise and that upon account of these defects the elevator cage, after being properly stopped, when left alone, would creep (that is move slowly), up on account of its leaky condition, in order to counteract the leaking in the cups, valves, or piston. The ceiling of the elevator cage had originally been fitted for an electric light, but prior to the execution of this lease it had been dismantled or disconnected, so that there was no wire connecting it with the light plant. It was impossible, without having this condition repaired, to have an electric light within the cage. There was evidence to show that all these conditions were in existence at the time of the execution of this lease, and were known, or, in the exercise of reasonable care ought to have been known, to the lessor, and to the lessee at that time or soon thereafter, but regardless of this they were allowed to thus continue up to the time of the accident.

Upon June 26, 1908, the appellee (who lives at Sterling, Colo.) came to Denver with her mother. They stopped at this hotel, where she was assigned to a room upon the second floor. Between 4 and 5 o'clock upon the afternoon of June 27th the elevator boy came to the second floor and informed her that she was wanted at the telephone, which was situate upon the ground floor. She went to the elevator, and was taken, by the boy who carried the message, to the first floor, where, upon leaving the elevator, she immediately went to the telephone booth and conducted a very short conversation with her brother, who was holding the line. She immediately went back to the elevator to be taken to the second floor. Finding the door open, and it being, as she says, 'quite shadowy there,' she assumed that the elevator was as she had left it but a moment or two before, and walked into what proved to be vacant space, falling to the cement basement about 12 feet below, and receiving serious and permanent injuries, for which the damages were awarded.

The young man in charge of the elevator testified, that before bringing the plaintiff down he had received a call for drinks to be secured at the bar; that after stopping the elevator at the first floor, when the plaintiff got out, he heard a bell ring, and, presuming it was a second call for the drinks, he followed her out of the elevator, going to the bar to get the drinks, intending to return at once, which he did; that he thinks he left the door of the elevator open; that the drinks were immediately furnished him, but just as he came out of the bar into the main office where the elevator was situate, he observed the plaintiff entering the door, and saw her fall. She also testified that her eyesight was not perfect, although reasonably good for all ordinary purposes; that she was then 28 years old; that when she returned to the elevator she found the door open, looked in, and thought that the elevator was standing there, and that the pilot was inside, but did not make an investigation to establish this latter fact before entering. At the time she entered the door, according to the testimony of her witnesses, the elevator cage, upon account of its defective condition, had crept upwards and the bottom of the cage was then some six or seven feet higher than this floor. She was between 5 feet 2 inches and 5 feet 5 inches in height, and did not come in contact with the cage when she entered the door. The elevator boy testified that the duties allotted to him by Mr. Copeland were not limited to running the elevator, but he was required to answer bell calls, carry water to the rooms, drinks, etc., and otherwise to wait upon the guests; that these latter duties were not usually required of elevator boys in hotels where he had formerly worked; that there was a lock to the door of the elevator shaft upon this floor, but he did not have a key to it; that he usually left the elevator doors open when answering calls; that in case he closed this door it became fastened, and it was then necessary to get a knife, blotter, or some other narrow instrument and slip it through the crack and raise the latch, and the door could then be pushed open from the outside. Mr. Copeland testified that the duties required of his elevator pilots were not limited to running the elevator, but that they were required to perform certain other services usually belonging to bellboys.

William J. Miles, Denver, for appellant.

Allen & Webster, of Denver, for appellee.

HILL, J. (after stating the facts as above).

The assignments of error present two questions: First, whether under the facts disclosed the appellant can in any event be held liable for the...

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