Derringer v. Tatley
Decision Date | 27 April 1916 |
Citation | 157 N.W. 811,34 N.D. 43 |
Parties | DERRINGER v. TATLEY. |
Court | North Dakota Supreme Court |
Plaintiff, a 14 year old bellboy, was injured because of protruding his head through an opening in the door of a passenger elevator. His duties which he was performing did not require him to so endanger himself, and could have been performed without any risk. He understood the open and obvious danger that might be the consequence of his act. Assuming negligence in operating the elevator in the condition it was in, and conceding that the same was dangerous, it is, however, held:
Plaintiff is not exonerated from his contributory negligence simply because he did not realize his risk assumed or did not think of what he was doing and observe the hazardous position in which he was placing himself. His employer had the right to expect that he would avoid such open and obvious danger, admittedly known to plaintiff to be such.
Under the proof as to plaintiff's mental capacity, contributory negligence was a question of law for the court, and precluded his recovery.
Appeal from District Court, Burleigh County; Nuessle, Judge.
Action by Martin Derringer, a minor, by John Derringer, his guardian ad litem, against Henry Tatley. From a judgment for defendant, plaintiff appeals. Affirmed.
Bruce, J., dissenting.George M. Register and F. H. Register, both of Bismarck, and S. E. Ellsworth, of Jamestown, for appellant. Niles & Koffel and Miller, Zuger & Tillotson, all of Bismarck, for respondent.
Action to recover damages alleged to have been received through the negligence of the defendant. The answer is a general denial with a plea of contributory negligence. The defendant, owner of the Grand Pacific Hotel in Bismarck, in September, 1912, installed therein a passenger elevator. Its use was begun September 30th, and this accident occurred October 6th. On account of two glass panels or guards to be set in the two doors to the elevator shaft on each floor not arriving, the elevator was operated temporarily without them. During such interval the plaintiff was injured in its operation. The complaint sets forth these facts with particularity and that the elevator as so used “was highly dangerous and liable to cause serious injury to the body or limbs of any person coming in collision or close contact” with the steel elevator cage moving within the elevator shaft; and negligence is charged in permitting it to be operated. It is charged that plaintiff was an employé of said hotel, and while in the discharge of his duties inflicting permanent injuries described. The complaint also alleges that the elevator boy at the time was under the age of 16 years, and that the statute prohibiting the employment of minors under 16 years of age was being violated by the defendant at the time, and a recovery is sought on said grounds, as well as upon common-law negligence.
At the close of the evidence the court was requested to take the case from the jury and direct a verdict of dismissal on the grounds of failure of proof and because contributory negligence was established. This the court refused to do, preferring to submit all issues to the jury, and thereafter, if necessary, pass upon the question under a motion for judgment notwithstanding the verdict, should one be made. However, the jury failed to agree, whereupon the court granted the motion for a directed verdict of dismissal. From the judgment thereon, plaintiff appeals.
The injury occurred on the ground floor of the hotel at the entrance to the elevator. Plaintiff, a boy past 14 years of age, was severely injured. He had been employed around the hotel off and on for a year or more, and for six or seven months next prior to the accident had worked continuously as bellboy, except that some four weeks next prior to September 30th he had not been at work or around the hotel, having been temporarily absent. He thoroughly understood the hotel and his duties. He knew that the glass guards were not in the doors opening into the elevator shaft. He knew the operation of the elevator and understood the movement of the cage within the elevator shaft. His duties were those of the ordinary elevator bellboy-to answer calls, look after the convenience of guests, and work as otherwise directed. Three bellboys were employed, two at the time being on duty, this plaintiff and one Peter Boehm. Peter had just a moment before gotten into the elevator at the third floor and descended with the elevator boy to the ground floor en route to the basement in the performance of his duties, to there turn out the lights. It was between 8 and 8:30 o'clock in the evening of October 6, 1912. The hotel was filled with guests. It was the duty of Peter and Martin to answer bells, and in so doing to go to rooms registered on the indicator. Just at this time two bells rang in different parts of the house. Martin noticed the numbers indicated, tripped the indicator, and turned to give one of the numbers to Peter to look after while he answered the other. At that moment the elevator descended bearing Peter and the elevator boy, Henning Stenberg, and as it came to the floor Martin was either awaiting it, or at that instant approached it. It stopped, but with the doors opening into the elevator remaining closed. But, as the interior of the elevator cage was lighted, Martin knew it was down, and while it was thus remaining stationary, but with the doors into it closed, Martin stuck his head through one of the openings through the doors where the glass had not been installed. This aperture in the door began 42 inches from the floor, was 10 inches wide, and extended 36 inches upward, constituting an open panel 10x36 inches in size. The elevator cage that carried the passengers up and down had no door on it; the doors to the elevator shaft being the door to the elevator. When plaintiff protruded his head through the opening in the door the elevator cage, with the two boys Peter and Henning in it, was stationary. Martin says the reason he approached there was to tell Peter the number of the bell for one of the rooms, and that he told him to attend to that room, and that he went close to the elevator because there were too many people around and it was too noisy to tell him without so doing, although he says he could have given him instructions without putting his head through the opening. Concerning this he was asked and gave the following answer:
Peter refused to take the order to attend to the room mentioned, and ordered the elevator boy to go on down to the basement. Concerning this plaintiff testifies:
Immediately after this the cage descended, and the top of it caught plaintiff's head at the back beyond the crown, and jammed his head and face down against the bar across the door, 42 inches above the floor. The cage was brought to a standstill, and plaintiff released, severely injured. In explanation of why he had his head inside of the elevator shaft plaintiff has testified that he did not know there was any danger there, and “did not know that his head was within that opening in the door as he stood there,” and did not sense that such was the fact until the descending elevator struck his head. When asked, “Why didn't you take your head out?” he answers, “I didn't know I had my head in.” The undisputed evidence shows that the top of the hood operates within, at the nearest, 3 inches to the inside of the door, so that his head could have been 3 inches within the elevator shaft and still not been touched by the descending elevator cage. As it was, his head must have protruded at least 10 or 12 inches inside the opening in the door, and that far from the perpendicular. Plaintiff was 5 feet 3 inches, or 63 inches, in height, so that exactly two-thirds of his height was below the bottom of the opening, which was 42 inches above the floor upon which he was standing. The 21 inches of his head and shoulders above the bottom of the opening in the door and 42 inches from the floor then must have been bent or thrust at an angle of approximately 90 degrees into the elevator cage. Otherwise plaintiff would not have been caught at the place on the back of his head that was hit by the descending elevator. He could not have known but that his head was...
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