Cubbage v. Estate of Conrad Youngerman, Inc.
| Decision Date | 11 March 1912 |
| Citation | 134 N.W. 1074,155 Iowa 39 |
| Parties | ROY E. CUBBAGE, v. ESTATE OF CONRAD YOUNGERMAN, Incorporated, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. W. H. MCHENRY, Judge.
ACTION to recover for injuries sustained by plaintiff while riding in a passenger elevator operated in an office building belonging to and under the control of the defendant estate. There was a verdict for the plaintiff for $ 4,000, and from judgment on this verdict the defendant appeals.
Affirmed.
Clark & Hutchinson, for appellant.
Read & Read, for appellee.
The grounds of negligence alleged were that defendant had in charge of the operation of the elevator at the time of the accident an incompetent operator; that defendant allowed the car to be operated with knowledge of defective condition of its machinery and appliances; and that the operator in charge of the car was careless and negligent in its operation management, and control. The appellant questions the sufficiency of the evidence to take the case to the jury as to each of the alleged grounds of negligence and complains of the instructions given by the court with reference to the degree of care required of the defendant in maintaining and operating the elevator. Complaint is made also of the admission of two items of evidence, and it is contended further that the verdict was excessive.
I. As the sufficiency of the evidence to take the case to the jury on the grounds of negligence alleged must depend to some extent on the measure of care required of the defendant in maintaining and operating the elevator, that question will be first considered. By a decided preponderance in the weight of authority, the measure of care and diligence required of one who maintains and operates a passenger elevator in a building into which the public is invited to come and make use of such elevator for usual purposes is the same as that required of public carriers of passengers; that is, the highest degree of skill and foresight consistent with the efficient use and operation of the means of conveyance. 1 Hutchinson, Carriers (3d Ed.) section 100; 1 Thompson, Negligence, section 1078; 10 Am. & Eng. Enc. of Law (2d Ed.) 946. It would be of no advantage to enter into an elaborate discussion of the facts and reasoning of the cases cited in the text-books in support of this general proposition. A few recent cases may properly be added, however, to those cited in the authorities above referred to. Quimby v. Bee Building Co., 87 Neb. 193 (127 N.W. 118, 138 Am. St. Rep. 477); Ohio Valley Trust Co. v. Wernke, 42 Ind.App. 326 (84 N.E. 999); Sweeden v. Atkinson Improvement Co., 93 Ark. 397 (125 S.W. 439, 27 L. R. A. (N. S.) 124); Farmers' & Mechanics' Nat. Bank v. Hanks, (Tex. Civ. App.) 128 S.W. 147; Shellaberger v. Fisher, 143 F. 937 (75 C.C.A. 9, 5. L. R. A. (N. S.) 250). In New York and Michigan passengers in elevators are entitled to only the ordinary care which the owner of land is required to exercise for the protection of persons who by invitation come upon his premises. Griffen v. Manice, 166 N.Y. 188 (59 N.E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630); Burgess v. Stowe, 134 Mich. 204 (96 N.W. 29). In Massachusetts it is held that one maintaining a passenger elevator in an office building is not a common carrier of passengers as defined by statute; but the court does not define or attempt to indicate the degree of care required for the protection of the elevator passenger against injury. Seaver v. Bradley, 179 Mass. 329 (60 N.E. 795, 88 Am. St. Rep. 384). It may well be that the owner of a building operating a passenger elevator therein is not a common carrier of passengers; but the authorities above cited, with the three exceptions noted, hold that the relation of the owner and operator to the passenger is so far analogous to that of a carrier to a passenger as that the degree of care required for the protection of the passenger from injury is the same. This view we think to be not only supported by the great weight of authority, but intrinsically sound, and we have no hesitation in adopting it. The court did not err, therefore, in giving instructions to the jury on this theory.
II. We have no serious difficulty under the record in finding that there was sufficient evidence to take the case to the jury on each of the grounds of negligence alleged and submitted. As to the alleged negligence in failing to have a competent operator in charge of the car, it is sufficient to say that although the elevator boy in charge was twenty years of age, and had had more than two months' experience, he had, according to his own evidence, been in the habit of starting the car before closing the door of access; at least, the jury might have drawn this inference from his testimony. Habitual negligence and carelessness in the performance of the duties involved in the employment may constitute incompetency chargeable to the employer as negligence in retaining the employee in his service. Maitland v. Gilbert Paper Co., 97 Wis. 476 (72 N.W. 1124, 65 Am. St. Rep. 137); Wall v. Delaware, L. & W. R. Co., 54 Hun 454 (7 N.Y.S. 709); Malay v. Mt. Morris Electric Light Co., 41 A.D. 574 (58 N.Y.S. 659); Cameron v. New York Cent. & H. R. R. Co., 77 Hun 519 (28 N.Y.S. 898); Coppins v. New York Central R. Co., 122 N.Y. 557 (25 N.E. 915, 19 Am. St. Rep. 523); Smith v. Backus Lumber Co., 64 Minn. 447 (67 N.W. 358); Hughes v. Baltimore & O. R. Co., 164 Pa. 178 (30 A. 383, 44 Am. St. Rep. 597).
III. As to the condition of the machinery, there is evidence tending to show that, although the electric power was shut off and the brake automatically applied when the floor of the car was only about two feet higher than the bottom of the door or exit, the car did not stop until plaintiff's legs were jammed against the top of the opening, which was seven feet high, and that the attention of the superintendent had three days before been called to the fact that the car would slide at times more than was usual. It was for the jury to say whether the machinery had been kept in a reasonable and proper condition of repair. Anderson v. Greenburg, 118 Ill.App. 220.
IV. In determining whether there was any evidence justifying a submission to the jury of the question whether the employee in charge of the elevator was careless and negligent in the operation, management, and control of the car, the following facts are to be considered: The plaintiff, an attorney employed in the offices of a firm on the fifth floor of the building, entered the car at the main floor with one Loftis, who occupied an office on the fourth floor. The elevator boy knew the usual destination of each, but neither announced his destination on that trip. At the fourth floor the elevator boy stopped the car and threw open the door, and Loftis immediately stepped out. Plaintiff attempted to follow him; the two being in conversation. The elevator boy, apparently not noticing that plaintiff was stepping from the car with Loftis, turned on the power and attempted to close the door, which struck the leg of plaintiff as he was attempting to step out. Thereupon the elevator boy attempted to shut off the power, but the car did not stop, and plaintiff's head struck against the top of the shaft opening. By this concussion he was thrown backward to the floor of the car, his feet protruding through the opening and being brought in contact with the top of the door frame.
Under these facts, we think it clear that it was a question for the jury whether the elevator boy was negligent in starting the car before he knew whether plaintiff was attempting to get off. Even if plaintiff had announced his destination, it was the duty of the elevator boy to guard against inadvertence or a change of mind on his part by seeing to it that he was not in a position of danger when the elevator started. The situation can be well illustrated by a case where a number of persons are in an elevator car destined for different floors. The elevator boy would have no right to assume that each would attempt to get off only at a floor which he had previously specifically designated. The concern of the passenger in announcing the floor of his intended exit is only to procure the stoppage of the car at that floor. When the car is stopped for persons to get off, any passenger desiring to leave the car at that place has the right to have a reasonable opportunity to do so, and it is the business of the elevator boy to see, before the car is started, that the starting of the car will not put any of his passengers in peril. The case is very analogous to that of a street car which has been stopped at a regular crossing to afford passengers the opportunity to alight at that crossing. It is clear that the conductor of such a car would be negligent in causing it to start while a passenger was attempting to get off, regardless of whether the conductor had been advised that the particular passenger desired to get off at that stop. Boice v. Des Moines City R. Co., 153 Iowa 472, 133 N.W. 657; Root v. Des Moines City R. Co., 113 Iowa 675, 83 N.W. 904. Specifically as to the duty of the employee operating a passenger elevator not to start the car before closing the door and seeing that no one will be placed in peril, see Belvedere Building Co. v. Bryan, 103 Md. 514 (64 A. 44); Becker v. Lincoln Real Estate & Building Co., 174 Mo. 246 (73 S.W. 581); Luckel v. Century Building Co., 177 Mo. 608 (76 S.W. 1035). There was also a question for the jury as to whether the elevator boy was negligent in the management of the elevator after he discovered the peril to the plaintiff.
V. Under the facts as stated in the last preceding division, the question of plaintiff's contributory negligence was...
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