Crawford v. Rice

• Decision Date: 06 December 1929
• Docket Number: No. 5643.,5643.
• Citation: 36 F.2d 199
• Parties: CRAWFORD v. RICE.
• Court: U.S. Court of Appeals — Fifth Circuit

36 F.2d 199 (1929)

CRAWFORD v. RICE.

No. 5643.

Circuit Court of Appeals, Fifth Circuit.

December 6, 1929.

Ellis Douthit, of Abilene, Tex. (J. M. Wagstaff, Ellis Douthit, and Wagstaff, Harwell, Wagstaff & Douthit, all of Abilene, Tex., on the brief), for appellant.

Wm. P. McLean, Jr., of Fort Worth, Tex. (W. P. McLean, W. P. McLean, Jr., Glover C. Johnson, and McLean, Scott & Sayers, all of Fort Worth, Tex., on the brief), for appellee.

Before WALKER and FOSTER, Circuit Judges, and DAWKINS, District Judge.

WALKER, Circuit Judge.

This was an action by the appellee, a minor, suing by his next friend, to recover damages for personal injuries sustained by him while he was in an elevator in a hotel at Big Spring, Tex., which was owned and operated by the appellant. The injury was attributed to negligence charged against the appellant.

Evidence without conflict showed the following: The hotel, which has 150 rooms, was new, having been opened for business in November, 1927. It contained the first elevator erected in Big Spring. Before and after the hotel building was completed, children living in Big Spring, especially some who attended a school diagonally across the street from the hotel, went to the hotel to see the elevator and ride on it. Prior to the occurrence in question, the manager of the hotel, pursuant to instructions given him by the appellant, gave the elevator operators orders not to permit children who were not guests of the hotel to ride in the elevator, and he instructed the bell boys to keep school children out and off the elevators. There were children living in the hotel with their parents and frequently transient guests in the hotel had children with them. Those children were permitted to be carried in the elevator. At and prior to the time in question, the hotel was filled to its capacity, due to the oil situation in that locality at that time. The elevator which then was in operation was of a type customarily used in hotels or other buildings like appellant's hotel. The inside dimensions of the elevator are 5 feet and 2 inches wide by 5 feet and 3½ inches deep. It was entered by a door in the elevator shaft which must be closed before the elevator can be moved. There was no door or collapsible gate in the elevator itself. On Sunday morning, March 18, 1928, the appellee, a boy, then four years old, who lived with his parents in Big Spring, went with his sister, then eight years old, to Sunday school in a church near the hotel. After attending Sunday school, appellee and his sister, who was a pupil in the day school above mentioned, went to the hotel to ride on the elevator. They entered the elevator on the ground or office floor when no one was in the elevator except the operator. After the children went into the elevator the door was closed and the elevator started up. When the elevator started appellee's sister was in the back end of the elevator and had her hands on his shoulders. After the elevator started and while it was between the first and second floors, the appellee left the place where he had been with his sister, went to the front of the elevator, came in contact with the wall of the elevator shaft, was caught between the elevator and the wall of the shaft, and was injured. The only evidence as to the immediate circumstances of the occurrence was the testimony of the appellee's sister and of the elevator operator, Mrs. Bessie Cook. There was no conflict in their testimony, except that appellee's sister testified that when they went into the elevator, and before the door was closed, she asked the operator if they could ride, and she said they could; while the operator testified that after the two children got in the elevator, and after the door was closed and the elevator started up, she asked them which floor they were going to, and they said they were not going to any floor, whereupon the operator told them she could not take them for a ride. There was no contradiction of the testimony of the operator to the effect that just before appellee moved from where his sister had her hands on his...