Farmers' & Mechanics' Nat. Bank v. Hanks

• Court: Texas Court of Appeals
• Writing for the Court: Levy
• Citation: Farmers' & Mechanics' Nat. Bank v. Hanks, 128 S.W. 147 (Tex. App. 1910)
• Decision Date: 21 April 1910
• Parties: FARMERS' & MECHANICS' NAT. BANK v. HANKS et al.<SMALL><SUP>†</SUP></SMALL>

128 S.W. 147

FARMERS' & MECHANICS' NAT. BANK v. HANKS et al.^†

Court of Civil Appeals of Texas.

April 21, 1910.

Rehearing Denied May 12, 1910.

Appeal from District Court, Tarrant County; R. H. Buck, Judge.

Action by W. T. Hanks and another against the Farmers' & Mechanics' National Bank for wrongful death, and a cross-action by defendant against John Bardon for indemnity. From a judgment for plaintiffs in the main action, and in favor of Bardon in the cross-action, defendant appeals. Affirmed.

Between 10 and 11 o'clock of the morning of October 15, 1906, while S. B. Hanks, aged about 22 years and son of appellees Hanks, was engaged in the work of plastering in the elevator shaft, he was killed by the descending elevator car being operated by appellant's employé in charge and control thereof. The appellant was the owner of a six-story office building in the city of Ft. Worth, known as the "Hoxie Building," and tenanted by a great many different people. Appellant constructed and owned and operated a passenger elevator therein to carry persons vertically from one story in the building to another, which was used for the transportation of passengers generally. All persons having business had the right and did commonly use the same. The building is one of the most public places in the city, and the elevator was used by hundreds of people daily. It was proved that it was advantageous to the owners of the building in renting the building, as it would not be possible to rent the upper stories advantageously without the use of an elevator. The elevator car was about 6 by 6 feet square, and between 10 and 12 feet high, and accommodated several people, and weighed about a ton. The elevator car is run by electricity, and works inside a shaft about six by six feet square, extending from the lower floor of the building upward to the top floor of the building. The movement of the elevator car is controlled by means of a handle that comes out of the top of the controller box; and by turning it one way the car ascends, and by turning it another way the car descends. For the purpose of running the car, the appellant placed Willie Page in charge and control thereof, and he was charged with the duties of running and operating the elevator car, and had sole charge and control for such purposes from 7 o'clock in the morning until 7 o'clock in the evening, except during the noon hour of the day, when the elevator was under the control of the electrician of the building. No other person but Page ran and operated the car during the day, except at the noon hour. Appellant had entered into a written contract with John Bardon to make certain repairs on the building, and he had a subcontract with Kuhlman covering the plastering to be done. A part of the plastering in the elevator shaft had fallen out, and Kuhlman employed deceased to replaster the place where it had fallen out, and at the time of the injury in suit deceased was at the work of replastering in the shaft. In order to do this work, it was necessary for deceased to lean his body over inside the elevator shaft, and this would place him in the path and way of the elevator car if descending. The place where the work was to be done was about a foot below the line of the floor, and the work could have been finished in about 15 minutes by stopping the running of the elevator so as to be uninterrupted. The elevator car was not stopped from running, but continued to be operated at and during the time the work was being done by deceased. The appellant's servant in charge of the elevator and operating same testified that he knew that deceased was working in the shaft on the second floor, and, "before going to work there that day, Mr. Hanks either asked me to or I told him that I would—I cannot say which—but I agreed to call out to him as I went up and came down. I cannot state whether he asked me to, or whether I told him I would. The purpose of my calling out to him was to let him know that I was near him in time to give him time to get out of the way. I just called out to him to let him know that I was coming." Hanks, the deceased, in doing the work of plastering, was lying on his stomach, and had to reach over with one arm down in the shaft, and that threw his head and part of his shoulders inside the shaft. The employé operating the elevator testified: "After I made this arrangement with Mr. Hanks by which I was to call out to him, I think I passed him about 12 times carrying passengers up and down, and on each of these occasions I called out to him in plenty of time for him to get out of the way. I knew he was working in there, and that, if I did not give him the signal and notify him, he was liable to be hurt." He further testifies: "I am not sure where I had started from just before the accident occurred, but I think I left the top floor and came down without a stop. When I left the top floor, I had some passengers in the car, four, if I am not mistaken. I did not give to Mr. Hanks any notification that I was coming down on the last trip that I made. I knew at the time that he was at work underneath the car. I don't know how it was that I came not to notify him." He testified positively both on direct and cross-examination that, before descending with the elevator just before the injury to deceased, he gave no warning to deceased that he was about to descend with the elevator. That no warning was given by the operator of the elevator before deceased was struck is testified to by two of the passengers in the elevator at the time. The speed of the elevator is shown to be 325 feet a minute, and "it was running fast when it struck Mr. Hanks." The elevator car struck deceased while it was descending, and caught his body between the floor of the building and the floor of the car, killing him.

By the petition appellees claim that appellant desired to operate the elevator while the work of plastering was progressing, and Page, the operator, clothed with authority of appellant to do whatever was necessary in the operation of the elevator car, agreed and promised deceased that, while he was performing the work of plastering the elevator shaft, warning would be given deceased by Page before starting the elevator car either up or down the shaft, so as to give deceased an opportunity to withdraw from danger, and also to handle the elevator at a slow rate of speed and keep the same under perfect control so as to avoid injury to him while he was engaged in the work of plastering, and that this employé negligently failed to give him this warning, and thereby caused his death. The appellant answered by general denial, contributory negligence, and assumed risk. It also by cross-action against John Bardon upon contract to be responsible as an independent contractor for damages for injury incident to his work sought judgment for like amount awarded against it in favor of appellees. Bardon answered by denial, and specially a want of contractual liability. Judgment was entered in favor of appellees Hanks against appellant, and in favor of Bardon against the cross-action of appellant, in accordance with the verdict of a jury.

All the issues of fact were decided by the jury against the contention of appellant, and they are supported by the evidence. We conclude that appellant through its employé was guilty of negligence as pleaded, proximately causing the death of deceased, and that deceased was not guilty of contributory negligence, and that appellees are not precluded from recovery on assumed risk by deceased, and that the amount recovered is sustained by the evidence.

Lassiter & Harrison and Harris & Harris, for appellant. Capps, Cantey, Hanger & Short, for appellee John Bardon. B. D. Shropshire and McLean & Carlock, for appellees Hanks.

LEVY, J. (after stating the facts as above).

By the first assignment, it is contended that the court erred in peremptorily instructing a verdict for John Bardon. Appellant made Bardon a party, and asked a like judgment against him that might be rendered against it, on the ground that Bardon had agreed in writing with it that he would "be wholly responsible for damage suits arising out of or in connection with the work, both on...