Davis v. Burke

• Decision Date: 04 April 1916
• Docket Number: 12943.
• Citation: 90 Wash. 495,156 P. 525
• Court: Washington Supreme Court
• Parties: DAVIS et ux. v. BURKE.

156 P. 525

90 Wash. 495

DAVIS et ux. v. BURKE.

No. 12943.

Supreme Court of Washington

April 4, 1916

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Jesse E. Davis and wife against Thomas Burke. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hughes, McMicken, Dovell & Ramsey and Alexander Dickinson, all of Seattle, for appellant.

John W Roberts and George L. Spirk, both of Seattle, for respondents.

MOUNT J.

The plaintiffs recovered a judgment for $5,000 against the defendant on account of personal injuries received by the plaintiff Jesse E. Davis as the result of an elevator accident in the Empire Building, an office building in Seattle owned by the defendant. The defendant has appealed from that judgment.

The appellant relies upon four alleged errors, which we shall briefly notice in their order. At the close of the plaintiffs' testimony the court denied a motion for a directed verdict, and after verdict denied a motion for judgment notwithstanding the verdict. These rulings of the court are alleged as errors. They involve the same question and that is whether there was sufficient evidence to go to the jury upon the question of the defendant's negligence.

The facts as testified to by the plaintiffs are, in substance, as follows: The respondent Jesse E. Davis was occupying an office on the tenth floor of the Empire Building on March 21 1914. There were three elevators in the building. These elevators are located about the middle of the building, on the north side thereof, and faced south upon a hallway which extends east and west through the building.

At about 2 o'clock in the afternoon of that day Mr. Davis left his office, intending to take one of the elevators to the street floor. As he came into the principal hallway leading past the elevators he saw a light burning over the center elevator. This light indicated that the elevator car would stop on its downward trip at that floor. He also discovered at the same time some people a few feet beyond the further elevator. Mr. Davis approached the middle elevator for the purpose of boarding the car. When he came up to the elevator the door was open, and as he attempted to step inside the elevator started as he put his foot upon the floor of the elevator, and he was caught between the top of the door of the elevator and the floor of the corridor with part of his body in the elevator, and part in the corridor; so that when the elevator came down it caught him on his right side, and crushed him down, and thereby inflicted severe injuries upon him. When Mr. Davis realized his danger, he shouted to the elevator boy to stop. The latter immediately reversed the lever, bringing the elevator back to the floor of the corridor. Mr. Davis was released upon the threshold of the elevator door.

Upon cross-examination Mr. Davis testified in part as follows:

'Q. Your statement is that the elevator was at a standstill as you stepped into it; is that correct? A. I believe I stated that I was not positive that the elevator had not started as my foot touched the floor. Q. Well, when you stepped into it, had it started? A. Not to my knowledge. Q. Well, didn't you know? You could see if it were moving? A. It is not as light in there as it might be, and one cannot always tell those things. Q. Oh, well, there was a boy in the elevator, and, if the elevator was moving, the boy would have been moving with it? A. Yes; and no such condition existed as indicating the elevator was moving so as to be perceptible. Q. Then to the best of your knowledge the elevator was standing still as you stepped in? A. Yes, sir.'

Mr. Davis on direct examination testified as follows:

'Q. So far as you know had it [the door] started to close at the time you started to enter the elevator? A. I don't know whether it started before I put my foot on the floor, or whether at exactly the same time.'

The boy who was operating the elevator testified, in substance, that he did not see Mr. Davis as he was about to enter the car; that when the elevator came to a stop on that floor he looked into the corridor and saw a woman just passing down the stairway at the left, and there was nobody in sight, and he started to shut the door; that while the door was closing he started the elevator down; that there was nobody in front of the elevator car when he started to close the door. He also testified that he was looking to his left before he started the elevator.

In Atkeson v. Jackson's Estate, 72 Wash. 233, 130 P. 102, 44 L. R. A. (N. S.) 349, we said:

'It must be remembered that in this state the operator of an elevator is a common carrier of passengers, and is held to the degree of care imposed upon common carriers generally; they must exercise with reference to the elevators under their charge the 'highest degree of care compatible with their practical operation.''

See, also, Perrault v. Emporium Department Store Co., 71 Wash. 523, 128 P. 1049; Edwards v. Burke, 36 Wash. 107, 78 P. 610.

In Ferrell v. Washington Water Power Co., 83 Wash. 319, 145 P. 442, we said:

'If we admit that there was no such lurch or jerk as to warrant a recovery, the fact remains that the accident would not have happened if the door had not been opened while the car was in motion. This conclusion is well within the doctrine of Perrault v. Emporium Department Store Co.

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