Dix v. Harris Machinery Co.

• Decision Date: 16 October 1953
• Docket Number: Nos. 35868,35869,s. 35868
• Citation: 240 Minn. 218,60 N.W.2d 628
• Parties: DIX v. HARRIS MACHINERY CO. et al.
• Court: Minnesota Supreme Court

Page 628

60 N.W.2d 628

240 Minn. 218

DIX v. HARRIS MACHINERY CO. et al.

Nos. 35868, 35869.

Supreme Court of Minnesota.

Oct. 16, 1953.

Syllabus by the Court.

1. Evidence that elevator gate did not have interlock required by ordinance No. 7210, § 14--39(c), Building Code of City of St. Paul, justified court's instruction that building owner and tenant who operated elevator were negligent as a matter of law by reason thereof and its submission, for jury's determination, of question whether such negligence was proximate cause of plaintiff's fall into elevator shaft.

2. Ordinance No. 7210, § 14--39(c), forbids use of freight elevators without interlocks on gates thereto, and use of elevator without such interlocks by tenant of building constitutes violation of this section.

3. M.S.A. § 183.35 requires that owner of building occupied by two or more tenants who jointly use freight elevator therein shall provide competent person to operate such elevator. Ordinance No. 5988, § 1, 1941 Compiled Ordinances of City of St. Paul, forbids carrying of passengers on freight elevators and violation thereof constitutes negligence which is imputable to a building owner who has failed to provide an elevator operator as required by § 183.35.

4. Ordinance No. 5988, § 1, is directed at persons, firms, or corporations owning or operating freight elevators. Plaintiff, who was a customer of building tenant whose employee was operating freight elevator and who, at latter's invitation, planned to enter elevator for purpose of being carried therein to second floor, was not guilty of negligence in the violation of ordinance No. 5988, § 1, which by its terms is not directed to him.

5. Objection to testimony of plaintiff on ground that it impeached his prior testimony or on ground that it was 'hearsay, self-serving and incompetent' cannot be made the basis of claim here that its admission constituted an Impeachment of documentary evidence previously submitted by plaintiff.

6. Where it appears that defendants failed to object to a certain audit filed with plaintiff's income tax return showing the net earnings for a certain year but subsequently objected to audits less favorable to defendants for the later years, it was within the discretion of the trial court to admit all such audits for the purpose of showing the complete picture of plaintiff's earnings during the years involved.

Mahoney, Cragg & Barnett, Minneapolis, for appellants Harris Machinery Co. and Clarence Peterson.

Meagher, Geer, Markham & Anderson and O. C. Adamson II, Minneapolis, for appellant Kavli.

Clifford W. Gardner, Robert P. Liesch, St. Paul, for respondent Dix.

FRANK T. GALLAGHER, Justice.

This case comes to the writer on reassignment during the summer recess.

Action for personal injuries sustained by plaintiff on August 27, 1947, when he fell down an elevator shaft in a building located at the southeast corner of Hampton avenue and Bradford street in St. Paul. The building was owner by defendant E. L. Kavli and was occupied by defendant Harris Machinery Company, a corporation, as lessee.

The jury returned a verdict against all defendants in the sum of $15,000. There are two appeals from an order denying the separate motions of defendants for judgment notwithstanding the verdict or for a new trial.

On appeal it is contended that the evidence does not establish the negligence of defendants, or any of them, and does establish plaintiff's contributory negligence as a matter of law. It is also urged that the court erred in receiving certain audits prepared by plaintiff's accountant and in certain of its rulings on evidence and instructions to the jury.

Plaintiff, a resident of Hill City, owned a general store there and a war surplus store at Hibbing and supervised the operation of both units personally. On August 27, 1947, at about 3:30 p.m. he arrived at the Harris Machinery Company located in the described building to purchase from it merchandise for the Hibbing store. Harris Machinery Company occupied part of the second floor of the building; other tenants occupied other portions of it. A freight elevator for all tenants was located in the center thereof.

Plaintiff first met defendant Clarence Peterson, an employee of Harris Machinery Company who was transacting business at a loading platform in the rear of the building. After a few moments plaintiff walked with him down the first floor corridor to the elevator for the purpose of taking it to the second floor where he ws to make his purchases. He testified that the corridor was poorly lighted; that, when 'we came to the elevator, and * * * stopped, * * * he (Peterson) reached down, raised the gate, and said, 'go ahead' so I stepped off in'; that he did this because Peterson had led him to believe that the elevator was at the first-floor level at that time; and that actually it was not there and in consequence, he stepped into space and fell some 13 feet to the basement, sustaining the injuries which form the basis of this action.

Peterson denied telling plaintiff to 'go ahead' and testified that he opened the elevator shaft door only so that he might call to have the elevator lowered from the second floor. It is not disputed that there was no licensed elevator operator employed for this elevator and that there was no one on the second floor at the time who might have lowered it. Peterson had operated it on many occasions, and all of the tenants had used it whenever they had need for it.

The elevator was approximately 35 years old. When the gate to its shaft was down, the bottom of the gate was from four to six inches above floor level. It was not equipped with any locking or safety devices and could be raised or lowered regardless of the location of the elevator in the shaft at the time. The elevator could be put in motion by reaching over the gate and pulling a cord used for that purpose.

Certain ordinances of the city of St. Paul pertaining to elevators were then in effect and were received in evidence. They provided:

Ordinance No. 5988, § 1, 1941 Compiled Ordinances of City of St. Paul:

'No person, firm or corporation, owning or operating freight elevators in the City of St. Paul shall use or allow to be used freight elevators for the purpose of carrying passengers.'

Ordinance No. 7210, § 14--39(c), Building Code of City of St. Paul:

'* * * All manually and power operated gates or doors shall be equipped with interlocks.'

M.S.A. § 183.35, likewise in effect at the time, provides:

'In any building occupied * * * by two or more tenants and in which * * * two or more tenants use jointly the same elevator for the purpose of moving persons or freight from one floor to another, it shall be the duty of the Owner of the building to provide a competent person or persons to regularly operate such elevator * * *.' (Italics supplied.)

At the close of the trial, counsel for the building owner requested the trial court to instruct the jury that:

'* * * Both defendants E. L. Kavli and Harris Machinery Company are chargeable with negligence for the violation of this ordinance (7210) in the ownership and operation of the involved elevator.'

At that time no objection to this request was made by counsel for Harris Machinery Company, and the court instructed the jury as follows:

'The jury is further instructed that it appears as a matter of law that each of the defendants is guilty of negligence in that the violation by the defendants of the ordinances received in evidence is negligence as a matter of law, and that the only questions to be submitted to you to determine are:

'First, whether the admitted violations of the ordinances referred to were the proximate, direct or legal cause of plaintiff's harm; and, second, whether the plaintiff himself was guilty of contributory negligence as that term has been defined for you; and, third, the question of damages.'

The court, after reading § 183.35, instructed the jury that:

'The party who charges another with violation of a statute must show that such violation, if it existed, was the proximate cause of the accident.'

At the close of the instructions, defendants excepted to the instruction that:

'* * * it appears as a matter of law that each of the defendants is guilty of negligence in * * * the violation * * * of the ordinances received in evidence * * *.'

1. We are of the opinion that the evidence was sufficient to justify the instruction that it appeared as a matter of law that each of the defendants was guilty of negligence in connection with the violation of the ordinances received in evidence. It is not disputed that the elevator gate was not equipped with an interlock as required by ordinance No. 7210, § 14--39(c). The jury was instructed to determine whether the violation of this ordinance was the proximate cause of the accident. We find no error in the submission of this question to the jury under the instructions given. Had the gate been equipped with an interlock as required, it could not have been opened unless the elevator was at the first-floor level at the time. Evidence of such facts would appear adequate to support a finding that violation of this ordinance constituted the proximate cause of the accident. Heitman v. City of Lake City, 225 Minn. 117, 30 N.W.2d 18; Judd v. Landin, 211 Minn. 465, 1 N.W.2d 861; 4 Dunnell, Dig. & Supp. §§ 6999, 7000.

2. Defendants Harris Machinery Company and Peterson assert, however, that this ordinance, while applicable to the building owner, has no force and effect as to Harris Machinery Company or its employees, since Harris Machinery Company was merely a tenant of only a portion of the premises. Ordinance No. 7210, § 14--39(c), however, by its terms is not limited to building owners in its application. It directs that all manually and power-operated elevator gates be equipped with interlocks, and the operation of an elevator without such gates would constitute a violation of the ordinance regardless...