Fowler v. Medical Arts Bldg.

• Decision Date: 16 January 1948
• Docket Number: 6986
• Citation: 188 P.2d 711,112 Utah 367
• Court: Utah Supreme Court
• Parties: FOWLER v. MEDICAL ARTS BLDG. et al

188 P.2d 711

112 Utah 367

FOWLER v. MEDICAL ARTS BLDG. et al

No. 6986

Supreme Court of Utah

January 16, 1948

Appeal From District Court, Third District, Salt Lake County; Ray Van Cott, Jr, Judge

Action by Francis F. Fowler against the Medical Arts Building and Norma Peterson to recover damages for the death of plaintiff's three-year-old son, who was killed in an accident on an elevator of the corporate defendant's building. From a judgment for the plaintiff, the defendants appeal.

Judgment affirmed.

Moyle McKay, Burton & White, of Salt Lake City, for appellant.

Elias Hansen, of Salt Lake City, for respondent.

McDONOUGH C. J., concurs.PRATT, J., concurs in the dissenting opinion of Mr. Justice LATIMER.

OPINION

WADE, Justice.

A jury awarded plaintiff a substantial verdict against the defendants as damages for the death of his three year old son, David John Fowler, who was killed on April 27, 1944, at about 3:00 p.m., in an accident on the elevator of the corporate defendant's building. Defendants appeal from such judgment.

The Medical Arts Building is a 10 story office building in Salt Lake City in which three elevator shafts are built side by side. Kimball elevators, a standard make, are installed therein, they operate at two speeds, the faster speed is usually used which at its highest speed moves at the rate of about 400 feet per minute. The speed at which these elevators start and which they attain as they continue to move is controlled automatically. The high speed does not start any faster than the slow speed, but only continues to attain greater speed for a longer period of continuous running. The operator can move the cage either up or down, or stop, or move either at high speed or low speed. The speed at which it starts and stops are controlled automatically.

There is no door on the elevator cage, and as the cages moves up and down there is an open space in the front thereof, which opens either into the doors or the elevator shaft. There is a door at the entrance of each of the elevator shafts on each floor, consisting of two panels each of which runs in a separate groove one behind the other; the doors open and close by each panel sliding along its groove and is operated by a cross bar with an elbow in the center which runs horizontally across the doors the full width of the two panels about five feet above the floor. When the doors are closed the center edges of the two panels are about even and slightly overlap each other, and the outer edges of these panels are against the door frame. When they are opened they slide to one side and one door is in front of the other. When the floor of the elevator cage is even with one of the floors of the building, there is only an inch or less space between them. When the doors are closed and the floor of the elevator cage is opposite some part of the doors there is a space of about 4 3/8 inches or more between the edge of the elevator floor and the farther panel of the door, a space of about 3 1/2 inches between the near panel of the door and the floor of the elevator cage, and a space of only 1 1/2 inches between the inside edge of the cross bar and the edge of the elevator cage floor. Thus the horizontal cross bar projects about three inches or more nearer to the floor of the elevator cage than the inside of the farther door. The doors and cross bar remain stationary on the floor where they are built, while the elevator cage moves up and down past them, and while this is taking place there is nothing except empty space between the passengers on the elevator cage and the doors and cross bar.

Shortly before the accident, Mrs. Fowler, the mother of the deceased boy, whom we will hereinafter call Johnny, and her sister, a Mrs. Smith, with three children were on the third floor of the Medical Arts Building, looking for the office of a Dr. Chase. Mrs. Smith was accompanied by her daughter Marilyn and Mrs. Fowler by her daughter Charlotte and by Johnny. Each of the girls were older than Johnny. When the elevator going up stopped, Mrs. Fowler inquired of the operator for Dr. Chase' office and was told it was on the ninth floor, whereupon they all entered the elevator. As they did so, according to plaintiff's version of the facts, Mrs. Smith was holding Johnny's hand in one of hers and in the other she was holding her daughter Marilyn's hand. The elevator, after they had entered, was filled nearly but not quite to its capacity. In order to turn around to face the doors Mrs. Smith released her hold on Johnny's hand while he was between her and the doors and before she had completely turned around and before she had time to take his hand again the elevator started with a jerk. According to all the substantial evidence of all parties, with the start of the elevator Johnny lost his balance and fell forward toward the door his head coming in contact therewith, and as the elevator continued upward, his head against the door was pushed upward until it came in contact with the bottom of the cross-bar across the door which projected out from the farther panel of the door three inches or more, this bar caught his head thereby preventing it from continuing to go on up with the elevator, and as the elevator continued to go on up, first his head and then the rest of his body was forced between the doors and the elevator floor, and as the elevator passed on up above his body he fell down to the bottom of the elevator shaft, more than fifty feet below. When the building engineer reached him there, his face was mangled beyond recognition and he was dead.

Of the facts stated above only three are in dispute. Mrs. Fowler testified that when Johnny fell, the third floor doors leading into the elevator shaft were opened. She was not corroborated in this by any other witness, and most of the physical facts seem to indicate the contrary. If the doors were opened he would simply have fallen through an open space onto the third floor. Since he was moving away from the elevator shaft his momentum would probably carry him away therefrom far enough so that he would not fall into it. All of the witnesses give the impression that he was pulled through a narrow space rather than that he merely fell through an open door. Both Mrs. Smith and Mrs. Fowler expressed the idea that there was time enough in his going for the elevator girl to have stopped the elevator in time to save him. If he had just fallen forward through an open door as soon as he fell he would have been gone. Mrs. Smith described his going as being like clothes being pulled through a wringer. There was a spot of what was described as fresh blood on the elevator floor. However there was no evidence that the cross hair had any blood on it. The building engineer was positive that the electrical contact with the machinery which runs the elevator would be broken whenever the door was opened. Thus there was no substantial evidence from which the jury could reasonably conclude that the door was open when he fell.

Defendant Norma Peterson, the elevator operator at the time of the accident, testified that there was no jerk in starting the elevator, and that Mrs. Smith, Mrs. Fowler and Johnny were all facing the doors and that Mrs. Fowler was holding Johnny's hand when she started. All the witnesses, except Mrs. Smith and Mrs. Fowler, who were on the elevator when the accident occurred testified that they did not notice any unusual jerk in starting. The building engineer testified that the starting was automatically controlled so that if it started at all it could not start with a jerk. A police officer testified that he inspected this elevator immediately after the accident, while it was being operated by the building engineer and that it did not then start or stop with a jerk. Plaintiff called two other witnesses, neither of whom were related to, or prior to the accident, acquainted with the plaintiff or his family. Each testified of riding the elevator on which Johnny was killed, on different occasions, within a week prior to the accident while it was being operated by other operators, and that on such occasion the elevator both started and stopped with a jerk, both on regular stops and between floors and that before the top floor was reached the passengers were asked to take another elevator.

The defendants did not directly contradict this testimony. Although the operators of the elevators on these occasions were described, and the times when these incidents occurred were quite definitely fixed, the defendants did not call such operators or make any showing that they were unable to do so. Nor did they call any other person who was riding on the elevator on either of those occasions. They argue that the testimony of these two witnesses was not admissible in evidence. They cite cases to the effect that evidence of negligence on one occasion may not be proven by showing similar acts of negligence on previous occasions. Those cases are clearly not in point here. The defendants used the same kind of testimony to prove that the elevator did not jerk in calling the city policeman who inspected the elevator immediately after the accident, and testified how it operated while the building engineer was operating it. The only difference is that the policeman observed the operation immediately after the accident and one of plaintiff's witnesses testified of an incident within a week prior thereto and the other testified of an incident which occurred on the Tuesday prior to the accident which occurred on Friday. Defendants' evidence showed that no repairs had been made in the meantime. Under such circumstances this evidence was not too remote. It had some probative value on the question of whether the elevator started with a jerk. The facts that...