Davis' Adm'r v. Ohio Valley Banking & Trust Co.

• Decision Date: 15 January 1908
• Parties: DAVIS' ADM'R v. OHIO VALLEY BANKING & TRUST CO.
• Court: Kentucky Court of Appeals

106 S.W. 843

127 Ky. 800

DAVIS' ADM'R v. OHIO VALLEY BANKING & TRUST CO.

Court of Appeals of Kentucky.

January 15, 1908

Appeal from Circuit Court, Henderson County.

"To be officially reported."

Action by Johnnie Davis' administrator against the Ohio Valley Banking & Trust Company for negligent death. From a judgment for defendant, plaintiff appeals. Reversed, and new trial directed.

Wm. P McClain, for appellant.

Lockett & Worsham and Yeaman & Yeaman, for appellee.

CARROLL J.

Alleging that his intestate, Johnnie Davis, a boy about 12 years of age, was killed by the negligence of the servants of appellee in operating an elevator in its building, this suit was brought by the administrator to recover damages for his death. The petition charged that decedent lost his life "by the gross negligence of the defendant, its agents servants, and employés while conducting and managing the said elevator." In amended petitions it was alleged that the decedent at the time of his death was, by the consent knowledge, and permission of the agents and servants of defendant, riding on top of the elevator, and was there for the purpose of carrying dinner to his sister, who was employed in one of the office rooms of the building in which the elevator was located, and while in this dangerous position was carried to the fourth floor of the building, and brought back to the first floor, when the elevator was stopped, and while it was standing, and decedent was in the act of getting off, the employés of defendant suddenly started the elevator, with the result before stated. The answer, after controverting generally the affirmative matter in the petition, pleaded contributory negligence on the part of the decedent. The original petition, to which a demurrer was sustained, was sufficient. It has been declared time and again by this court that in an action for personal injuries it is sufficient to charge in a general way that the injury or death for which the recovery is sought was caused by the negligence of the defendant. The plaintiff is not required to state the circumstances or details under which the infliction of the injury was accomplished, in order to show that it had been occasioned by negligence, or to state facts showing that he was not guilty of negligence, thus anticipating the defense. An allegation of the extent of the injury, and the manner in which it was caused, has always been regarded as sufficient. Chiles v. Drake, 2 Metc. 146, 74 Am. Dec. 406; L., C. & L. R. Co. v. Case, 9 Bush, 728; L. & N. R. Co. v. Mitchell, 87 Ky. 327, 8 S.W. 706; L. & N. R. Co. v. Rains, 23 S.W. 505, 15 Ky. Law Rep. 423; W. A. Gains & Co. v. Johnson (Ky.) decided Nov. 20, 1907, and reported in 105 S.W. 381. Upon the conclusion of the evidence offered for appellant, the jury, by direction of the court, returned a verdict for appellee. This ruling makes it necessary to relate with some detail the evidence for the purpose of ascertaining whether or not the case should have gone to the jury.

The elevator is situated on the ground floor of the building. The elevator cage is constructed of iron openwork, through which any person might be seen, and the top of the elevator was also made of openwork, with probably a solid piece in the center of the top. A person in the elevator could plainly see through the openwork a person riding on the top of it. Immediately by the side of the elevator is a stairway leading to the upper stories of the building, and when the elevator is standing at the ground floor a person on top of the elevator can crawl through an open space in the net work surrounding the elevator shaft onto the stairway. The elevator was in charge of a boy, but the record does not show his age. In the elevator with the operator was another boy. Johnnie Davis, who had been riding on top of the elevator, was in the act of crawling out, feet foremost, to the stairway, when the elevator, which at this moment was stationary on the ground floor, was suddenly started. His head was caught by the elevator in its upward movement, and almost severed from his body, death resulting instantly. The proof showed that Johnnie Davis was 12 years of age; that his sister was working in a telephone office in the building in which the elevator was located; and that he had gone there on the day of his death for the purpose of taking dinner to her, she being employed in one of the top stories of the building that could be conveniently reached by taking the elevator. The proof of one witness was that Johnnie Davis was in the act of getting off of the elevator, which was standing at the ground floor, through the opening in the shaft, when it suddenly started; by another witness, who had been looking at the elevator for a few minutes, that there were two boys in the elevator, and one on top of the elevator; that it went up to about the fourth story, and came down and stopped, and the boy on top of the elevator was in the act of getting out when the elevator boy started it and killed him. This witness said the boys in the elevator were laughing and talking to the boy on top of the elevator, that he heard them as the elevator went up and when it came down, that the boy on top did not try to get out until the elevator stopped. Another witness, who came in the building just as the accident happened, said he asked what was the matter, and the elevator boy said: "I have killed little Johnnie Davis, and didn't go to do it. We were just playing with the elevator, and he went to get off and got killed." The boy who was in the elevator when the accident happened said that John Gillum was the operator and that Johnnie Davis was on top; that he went up to the second floor and got on; that he could have seen him if he had been looking, and heard him talking at the fifth floor. He didn't know whether the boy operating the elevator saw him when he started the elevator or not. It will thus be seen that there was evidence conducing to establish two propositions, first, that the operator was a boy; second, that he knew Johnnie Davis was riding on top of the elevator just before he was killed, and could have seen him in the act of getting off if he had looked before starting it on its upward journey.

Counsel for appellee insist that the little boy who was killed was a trespasser, and that the operator owed him no duty except to prevent injury to him after...