Davis v. Freisheimer
| Decision Date | 26 September 1923 |
| Docket Number | 5274. |
| Citation | 219 P. 236,68 Mont. 322 |
| Parties | DAVIS v. FREISHEIMER. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; James M. Self, Judge.
Action by Arthur G. Davis against George Freisheimer. From a judgment for plaintiff, defendant appeals. Affirmed.
John E Patterson and Dan J. Heyfron, both of Missoula, for appellant.
Harry H. Parsons, and George G. Witter, both of Missoula, for respondent.
The plaintiff, an employé of the defendant, while in the course of his employment fell into an elevator shaft in defendant's store. Charging the accident to have been the result of defendant's negligence, plaintiff brought this suit. There was a verdict for plaintiff in the sum of $5,000 upon which judgment was entered. Motion for a new trial having been denied, defendant appealed. The transcript embraces 314 printed pages, while the "briefs" contain 226. There are 46 specifications of error. Were we to discuss them all, this opinion might rival one of the briefs in length. But as we view the case an extended discussion will not be useful to any one.
Asserting that the complaint does not state facts sufficient to constitute a cause of action, defendant first challenged it by demurrer which was overruled. Attack upon the same ground was renewed frequently during the trial, and is made the basis of many alleged errors urged upon this appeal. The complaint charges in part that at all times mentioned the defendant was the owner of and operating a drug store in a two-story brick building with basement in the city of Missoula; that in the northeast part of the storeroom on the ground floor there was at all times "an old, dangerous and out-of-date elevator owned and operated by the defendant which ran from the basement below said ground floor to the said ground floor and second story of said building," the power therefor being supplied by the person operating it; that there was a doorway about 4 to 5 feet in width and about six feet in height opening into the elevator shaft; that there was no gate, screen, chain, or other contrivance in the doorway whatsoever; that the corner occupied by the elevator was dark and without any light sufficient for one to see whether the elevator cage was up, down, or on the level with the ground floor; that there was no lock, device, or contrivance whatsoever "by which the said cage could be made stable and fast, so that it would remain or stay even with the floor on which it was stopped, but that at said times when it was so stopped on such level it would gradually slide or creep upwards about 4 or 5 feet above said floor and leave a dangerous opening between the bottom of the cage and the said ground floor"; that the elevator had been in substantially the same dangerous condition without improvement, repair, or state inspection for more than 10 years; and that all of these facts and conditions were known to the defendant, or by the exercise of reasonable care would have been known to him.
In a succeeding paragraph the foregoing conditions and others were charged specifically as negligence on the part of the defendant; for instance, it was charged that defendant negligently and carelessly failed and omitted to provide any light in or about the elevator or the shaft, but negligently kept the same and the surroundings dark; that he negligently failed and omitted to provide any appliance in or about the opening of the door leading to the shaft so as to prevent one from falling therein or to give one warning thereof; that he negligently and carelessly failed and omitted to provide any lock or other appliance on the elevator "so as to prevent the same from gradually slipping and creeping up above the floor when and where stopped, so as to prevent persons from falling in said shaft while and when the bottom of the cage would so get above the floor where stopped."
It was then alleged that as a direct and proximate result of these acts of negilgence the plaintiff, while in the exercise of due care, and while acting within the scope of his authority and in the line of his employment, and while working on the ground floor in the northeast corner thereof, fell into "said dark and unguarded opening down into said elevator shaft," a distance of about 16 feet, the injuries complained of resulting.
The defendant insists that the complaint is fatally defective, for the reason that it does not show any causal connection between any alleged act of defendant and the injuries sustained by plaintiff. In other words, the precise attack the defendant makes in this respect is that it is not alleged specifically that the aperture between the ground floor and the bottom of the elevator at the time the accident occurred was caused by any particular negligence of defendant.
The complaint was sufficient against a general demurrer. It appears from its allegations that the defendant was negligent, that plaintiff was injured, and that the negligence charged was a proximate cause of the injury. No other reasonable inference can be drawn from the allegations of the complaint but that the injury suffered would not have happened but for the negligence alleged, and hence the causal connection between the two appears. In other words, it is reasonably clear from the allegations that if the cause had not existed the injury would not have occurred. Stones v. Chicago, M. & St. P. Ry. Co., 59 Mont. 342, 197 P. 252, and cases cited. The pleading here comes within the rule laid down in Stricklin v. Chicago, M. & St. P. Ry. Co., 59 Mont. 367, 197 P. 839, wherein the court said:
If the defendant had complained that he was unable to properly prepare his defense because not apprised of the precise details of the act or acts of negligence upon which plaintiff intended to rely at the trial, he might have moved to have the complaint made more specific, or have called for a bill of particulars, neither of which he did.
Pointing out what they claim to be a fatal defect in the complaint, defendant's counsel say that it does not even allege that at the time plaintiff fell into the basement--an accident undisputed and properly alleged--an opening existed between the building floor and the elevator floor. This objection is hypercritical. An obvious answer to it is that if there had been no hole there plaintiff would not and could not have fallen into the basement.
They also object that "the complaint is fatally defective in failing to state within what time the defendant knew of any defects and dangerous condition to exist, or within what time defendant should have known." This objection also is without merit in view of the recitals of negligence followed by the allegation that the elevator contrivance and apparatus had been in substantially the same dangerous condition without improvement, repair, or state inspection for more than 10 years, and "that all the facts and conditions herein stated were known to defendant, or by the exercise of reasonable care would have been known to him." Thus the complaint is brought within the doctrine announced in Hollingsworth v. Davis-Daly Estates Copper Co., 38 Mont. 143, 99 P. 142. In this particular the complaint was not vulnerable to a general demurrer; if the defendant required more specific information he should have made proper demand for it.
The defendant's answer, after admitting some of the allegations of the complaint, consists otherwise of a general denial, followed by two affirmative defenses. In the first of these defendant pleads that plaintiff assumed the risks of his employment, alleging that at the time of the accident plaintiff went to the elevator for the purpose of entering and operating it, and observed, knew, and appreciated the position of the elevator and the danger incident to entering the same in its then position, the floor of the elevator being above the floor of the store, or in the exercise of ordinary care he might and should have known and appreciated the same; that as plaintiff attempted to enter the elevator he accidentally lost his position and fell beneath the same causing him some injury. In the second defense the defendant pleads that the plaintiff was guilty of contributory negligence. In this defense the defendant avers that at the time of the accident the plaintiff went to the elevator for the purpose of entering and operating the same, and observed that the elevator was raised so that the floor thereof was above the main floor of the store; that upon observing the position of the elevator plaintiff negligently endeavored to enter the elevator from the floor, and in attempting so to do lost his position and fell between the floor of the elevator and the main floor to and into the basement under the elevator. Further allegations are to the effect that there was a safe way in which the plaintiff might have proceeded, but instead of adopting the safe way the plaintiff negligently failed and omitted to use the same, and deliberately chose the more dangerous course; "that if there was any negligence which caused the elevator to be in the position it was in at the time the plaintiff attempted to enter the same it was due and caused by the plaintiff himself; that plaintiff caused said elevator to be in said position at said time; that if there was any negligence that by reason thereof and of the premises,...
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