Appeal
from City Court of Montgomery; A. D. Sayre, Judge.
"To
be officially reported."
Action
by Charles H. Chandler against the First National Bank of
Montgomery. From a judgment for plaintiff, defendant appeals.
Affirmed.
Rehearing
denied January 6, 1906.
The
appellee was employed by the appellant to do some work in the
elevator shaft between the first floor and the basement of
the bank building, and, after notifying the elevator boy that
he had gone to work and not to bring the elevator down to the
first floor any more until so notified, he began his task
and while working at it the elevator was brought down by the
elevator boy and appellee was struck by the elevator
crushed, bruised, and otherwise injured. The complaint
contained 13 counts, of which counts 2 and 10 were stricken
on the plaintiff's motion.
The
first count was in words and figures as follows: "The
plaintiff claims of the defendant, a corporation under the
banking laws of the United States, the sum of $15,000
damages, for this: That on the 22d day of January, 1903, the
defendant was in the possession and control of a certain
building, to wit, a six-story building on Commerce street, on
the first floor of which it conducted its business of
banking, and on the other floors of which were rooms which it
rented for offices and other purposes. That there had been
constructed in said building, and defendant was operating on
said 22d day of January, 1903, a certain car, called an
'elevator,' which ascended and descended vertically
in what was and is known as an 'elevator shaft,' and
conveyed said tenants and other persons up and down from
floor to floor in said building. That said elevator was at
the date aforesaid in charge of and operated by one Archibald
Lewis, who was employed by defendant for said purpose, and
whose duty it was by means of appliances in said car to apply
and disconnect the motive power as occasion required and as
he might desire the same to ascend or descend. That on the
date aforesaid plaintiff was employed by defendant to perform
certain mechanical labor in the shaft or well of said
elevator below the ground floor of said building, and
pursuant to said employment plaintiff on said date was
engaged in performing said labor in said shaft or well at the
place aforesaid. That while he was so engaged in said work at
said time said Lewis was then and there in charge of and
operating said elevator as aforesaid, and negligently caused
the same to descend into said shaft to the place where
plaintiff was so at work, upon plaintiff, whereby his body
to wit, shoulders and chest, were crushed, bruised, and
injured. Plaintiff avers that said Lewis, who was so in
charge of said elevator at said time and place as aforesaid
was incompetent to operate the same, by reason of
carelessness and inattention to his said duties, and that
plaintiff's said injuries were caused by said
incompetence; and plaintiff avers that at and before the time
when plaintiff was so injured said defendant was informed of
said incompetency of said Lewis, and that with such
information it negligently retained and employed said Lewis
in such position. Plaintiff avers that he has suffered great
mental anguish and physical pain because of said injury, and
has suffered special damages, in that said injuries are of a
permanent character, and now prevent, and will in future
incapacitate, plaintiff from engaging in manual labor in the
line of his business as a joiner and cabinet maker, or other
hard labor, for a livelihood, wherefore he brings this
suit."
The
third count was: "Plaintiff claims of the defendant the
sum of $15,000 as damages, and adopts as a part of this
count, and reaffirms and again alleges, all the averments of
the first count down to the averment of incompetency of said
employé, Archibald Lewis. And in place of said last-mentioned
averment, and all that follows it in said count, plaintiff
alleges that said Archibald Lewis, who was so employed by
defendant to operate said elevator car, was at the time
aforesaid incompetent to safely operate the same by reason of
his carelessness and inattention to his duties in that
respect, and that his incompetency was known to defendant at
and before the time of plaintiff's said injury; and
plaintiff avers that, notwithstanding defendant so knew of
the incompetency of said Lewis, it retained him in its
employment to operate said elevator. Plaintiff further avers
that it was because of said incompetency that said Lewis
negligently caused said elevator to descend in said shaft, to
the injury of plaintiff as aforesaid."
The
fourth count was withdrawn.
The
fifth count was the same as the first count down to and
including the words "was engaged in performing said
labor in said shaft or well at the place aforesaid," and
adds: "That while he was so engaged in said work at said
time and place said elevator car descended down said shaft
upon plaintiff, whereby he was greatly injured. Plaintiff
avers that the descent of said elevator car upon him as
aforesaid was caused by the negligence of said Lewis, who was
in the service or employment of the defendant, and who had at
said time superintendence of said car and the motive power by
which the same was operated as aforesaid, and was so caused
while said Lewis was in the exercise of such
superintendence."
The
sixth count was the same as the first count down to and
including the words, "his shoulders and chest were
crushed, bruised and injured," and adds: "Plaintiff
avers that said injury was caused by reason of the negligence
of A. M. Baldwin, who was in the service or employment of the
defendant, and who had superintendence of the person
operating said elevator intrusted to him whilst in the
exercise of such superintendence."
The
seventh count was the same as the first count down to and
including the words "that on the date aforesaid
plaintiff was employed by," and adds in the place of the
word "defendant" the words "A. M. Baldwin, who
was president of the defendant corporation," and then
continues as in the first count to the end of same.
The
eighth count was the same as the first count down to and
including the words "his shoulders and chest were
crushed, bruised and injured" and adds the words
"Plaintiff avers that said injury was caused by the
negligence of A. M. Baldwin, who was then in the employment
of the defendant, and to whose orders or directions the
plaintiff at the time of his injury was bound to conform and
did conform, and that said injury to plaintiff resulted from
his having so conformed. And plaintiff avers, as a part of
each count of the foregoing complaint, numbered 2, 3, 5, 6,
and 8, that he has because of said injury suffered great
mental anguish and physical pain, and has sustained special
damages in this: That said injuries are permanent, and now
prevent and will in future incapacitate plaintiff from
engaging in manual labor in the line of his vocation, to wit,
mechanical labor as a joiner and cabinet maker, or other
profitable employment."
The
ninth count was the same as the first count down to and
including the words "his shoulders and chest were
crushed, bruised, and injured," and adds the words:
"And plaintiff avers that said Archibald Lewis, who was
so in charge of said elevator at said time and place, was
incompetent safely to operate the same by reason of his
carelessness and inattention to his said duties, and that
plaintiff's said injuries were caused by said
incompetence. Plaintiff avers that the defendant could, by
the exercise of reasonable diligence at and before the time
said injury occurred, and in time to have averted the same,
have informed itself of the unfitness of said Lewis, by
reason of his carelessness and inattention to his said
duties, to be intrusted with the performance of the thing.
But plaintiff avers that the defendant negligently failed to
inform itself of said incompetency of its said employé, and
retained said Lewis in its employment, to the injury of the
plaintiff as aforesaid."
The
eleventh count: "Plaintiff claims of the defendant the
further sum of $15,000 as damages for this: That defendant on
the 22d day of January, 1903, was the owner of a certain
building on Commerce street in the city of Montgomery, Ala
known as the 'First National Bank Building,' which
was several stories high, and was causing to be operated a
passenger elevator to carry persons from one floor to
another, and prior to said date one Archibald Lewis was and
had been in charge of and operating said elevator. That said
Lewis was incompetent to operate or have charge of the same,
because of his carelessness and inattention to his duty. That
on the 22d day of January, 1903, plaintiff was employed by
the defendant to perform certain work in the shaft in which
said elevator was worked and operated. That while plaintiff
was so employed said Lewis negligently caused or permitted
said elevator to descend into said shaft to the place where
plaintiff was working under his said employment, and upon
plaintiff, whereby his body was greatly crushed, bruised, and
otherwise injured. Plaintiff avers that said Lewis was so
careless and inattentive in the matter of the discharge of
his said duties that he was an incompetent and unfit person
to leave in charge of the same while plaintiff was so at work
in the shaft of said elevator, and that by the use of
reasonable diligence the defendant could, in time to have
averted said injury, have ascertained the fact of such
incompetence; but plaintiff avers that said defendant
negligently failed to discover the fact of such incompetency,
and left said Lewis in charge of said elevator while
plaintiff was so at work as...
