Dulaney Inv. Co. v. Wood, 14087.

• Decision Date: 24 May 1940
• Docket Number: No. 14087.,14087.
• Parties: DULANEY INV. CO. v. WOOD.
• Court: Texas Court of Appeals

Page 379

142 S.W.2d 379

DULANEY INV. CO. v. WOOD.

No. 14087.

Court of Civil Appeals of Texas. Fort Worth.

May 24, 1940.

Rehearing Denied July 12, 1940.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by H. Frank Wood against the Dulaney Investment Company to recover damages sustained while plaintiff was a passenger in defendant's elevator. From an adverse judgment, defendant appeals.

Affirmed.

Buck & Knapp and John Snyder, all of Fort Worth, for appellant.

Houtchens & Houtchens, Lloyd H. Burns, and J. Harold Craik, all of Fort Worth, for appellee.

BROWN, Justice.

Appellee brought suit against appellant to recover damages for alleged personal injuries sustained while a passenger in appellant's elevator, which is used in connection with appellant's office building—a building in which offices are rented to tenants by the appellant.

The grounds of negligence relied upon are reflected in the special issues submitted, as well as are the special defenses. The material findings are: (1) that defendant's employee in charge of the elevator failed to exercise ordinary care to see that plaintiff was away from the elevator door before he started the elevator, (2) that this act was negligence, and (3) a proximate cause of the injuries sustained by plaintiff, (4) that the failure of defendant to provide a door on the elevator cage was negligence, and (5) a proximate cause of plaintiff's injuries, (6) that the operator failed to give the plaintiff sufficient time to get his balance and footing before he started the elevator, (7) this was negligence, and (8) a proximate cause of plaintiff's injuries, (9) that the operator failed to warn plaintiff to stand back from the entrance to the elevator door before starting the elevator, (10) that such act was negligence, and (11) a proximate cause of plaintiff's injuries, (12) that the failure of the defendant to have some character of guard across the entrance of the cage was negligence, and (13) a proximate cause of plaintiff's injuries, (14) that it was not an unavoidable accident, (15) that plaintiff was injured on the occasion in question and (16) his damages set at $7,500; the jury, on the defensive issues, found, (1) that plaintiff did not fail to keep a proper lookout for his own safety immediately after entering the elevator, (2) that he did not fail to stand back from the extreme front end of the elevator, when there was sufficient space to the sides and rear for him to have assumed a safer position, (3) that he did not attempt to turn or move about while the elevator was in motion, (4) that the operator did not warn plaintiff to stand back from the entrance prior to the time he put the elevator in motion, (5) that plaintiff did not fail to keep every portion of his body from extending beyond the west side of the elevator on the occasion in question, (6) that plaintiff did not fail to keep every portion of his arm from extending beyond the west side of the elevator on the occasion in question, (7) that plaintiff did not lose his balance by reason of being jostled by another passenger or passengers.

The proof shows that plaintiff's right arm at or about the elbow was struck by the floor on which he boarded the elevator, or on the floor next below, as the elevator descended.

Judgment was rendered for plaintiff, and the defendant has appealed, presenting twenty-four propositions as germane to certain assignments of error.

The first eight propositions are grouped because of their kinship and will be considered together. The first asserts that the evidence adduced raised no issue of negligence on the part of the defendant, and the trial court erred in refusing to grant defendant's motion for an instructed verdict; the second is a restatement of the first; the third asserts that the trial court erred in entering judgment for plaintiff based on the jury's answer to issue No. 3 (a finding that appellant failed to exercise ordinary care to see that appellee was away from the door before the elevator was started), because the undisputed evidence shows that the elevator was not started until appellee had taken a safe and secure position, several inches from the front of the elevator and the subsequent blow received by appellee was caused solely by his negligent conduct in extending his arm out into the elevator shaft; the fourth asserts that the trial court erred in rendering judgment for appellee based on the answer to issue No. 6 (a finding on the failure of appellant to provide a door on the entrance to the elevator), because as a matter of law such failure could not constitute negligence, and the undisputed evidence shows that the sole cause of appellee's injury was his negligent conduct in extending his arm out into the elevator shaft while it was in motion; the fifth asserts that the trial court erred in rendering judgment for appellee based on the answer to issue No. 8 (a finding that the operator failed to give appellee sufficient time in which to get his balance and footing in the elevator before starting same), because the only testimony shows that appellee had taken a firm and secure position with his back to the north wall of the elevator and several inches from the front of the elevator before it was started, and the undisputed evidence shows that the sole cause was appellee's act and conduct as outlined in the preceding propositions; the sixth asserts that the court erred in rendering judgment for appellee based on the answer to issue No. 11 (a finding that the edge of the fourth and fifth floors of the building extend beyond the collapsible doors of the elevator shaft in such a manner that the edges of the floors are in close proximity to the doorway of the elevator cage), because as a matter of law such construction is the only method of construction of a building with like elevators, and is a proper method of construction, and the undisputed evidence shows that appellee was injured through his own negligent acts and conduct, as stated in the preceding propositions; the seventh asserts that the court erred in rendering judgment for appellee based on the answer to issue No. 14 (a finding that the operator failed to warn appellee to stand back from the entrance before the elevator was put in motion), because there is no testimony showing any necessity for so warning appellee, in that he was in a safe position, being several inches from the front of the elevator, but for his said negligent acts and conduct; the eighth asserts that the court erred in rendering judgment for appellee based on the answer to issue No. 17 (a finding that appellant was negligent in failing to have some character of guard across the entrance to the elevator), because as a matter of law such construction could not constitute negligence, and the undisputed evidence shows that appellee was injured through his own negligent acts and conduct, as stated in the preceding propositions.

We see no merit in these propositions.

The plaintiff below brings his suit on the theory that the failure of the appellant to maintain a door or some guard across the entrance to the elevator is negligence because that brings about a dangerous condition to which passengers in the elevator are exposed, and he further contends that the elevator was started by the operator before plaintiff could take his place in the elevator and secure a footing. We take this last allegation to mean that plaintiff sustained the blow to his elbow, or arm, before he could go far enough into the elevator to get to a place of safety.

It was admitted that elevators constructed with doors to the cage, or with guards, afford greater protection than those with no doors, or guards; and that the more modern construction is with doors, or guards. That there are now in use about fifty per cent of each kind.

Plaintiff testified that he had just stepped into the elevator when it started down and his elbow was struck by the edge of the floor from which he stepped; that the accident occurred immediately after he took one step and turned slightly.

We are of opinion that whether or not the operation of the elevator without a door or guard constituted negligence was an issue for the jury.

In Farmers & Mechanics National Bank v. Hanks, 104 Tex. 320, 137 S. W. 1120, 1124, Ann.Cas.1914B, 368, in speaking of the duty owed by the owners of passenger elevators to their passengers, the Supreme Court says: "Nevertheless, with reference to the safety of their passengers, the law has imposed upon the proprietors of passenger elevators duties precisely similar to those exacted of passenger carriers by railroad. The safety and lives of those who avail themselves of this means of carriage must of necessity be intrusted in great measure to the care of those who control and operate the cars. The law therefore justly holds that, while the owners of passenger elevators are not insurers of the safety of their passengers, they are bound to exercise in their behalf the highest degree of skill and foresight, or, as some courts have expressed it, the utmost human care and foresight consistent with the efficient use and operation of the means of conveyance employed."

This seems to be the last expression by our Supreme Court on the subject discussed.

We find where the Court of Civil Appeals for the Fourth District said, in City National Bank v. Pigott, 270 S.W. 234, 236: "The elevator operator is required to exercise the highest degree of care to so operate his vehicle as not to injure those lawfully upon or lawfully entering or leaving it."

The testimony is conflicting and appellee's testimony raises the several issues of fact that were submitted to the jury.

The trial court was not authorized, in the light of...