Gardner v. Seymour

• Decision Date: 09 May 1947
• Docket Number: 30065.
• Parties: GARDNER v. SEYMOUR et ux.
• Court: Washington Supreme Court

180 P.2d 564

27 Wn.2d 802

GARDNER v. SEYMOUR et ux.

No. 30065.

Supreme Court of Washington

May 9, 1947

Department 2

Action by Doris Gardner, individually and as administratrix of the estate of Jean W. Gardner, deceased, against August Seymour and wife, doing business under the firm name and style of Seymour's Army and Navy Stores, to recover damages for the wrongful death of plaintiff's intestate. Judgment for plaintiff, and defendants appeal.

Reversed and action dismissed.

MALLERY C.J., dissenting.

Appeal from Superior Court, Pierce County; E. D Judge.

Shank, Belt, Rode & Cook, of Seattle, for appellants.

Copeland & Tollefson, of Tacoma, for respondent.

HILL Justice.

Appellants have a six-story-and-basement building. On the two lower floors, they conduct a merchandising business, and the upper four floors are used for storing stock.

On October 3, 1944, Jean W. Gardner, who had been working for appellants for about two years and who was manager of the second floor store, went out of the store premises on the second floor, to a hallway, for the express purpose of getting stock replacements from one of the upper floors. From that hallway there were stairs going up and down, and also an entrance to a freight elevator. About six minutes later, he was found at the bottom of the elevator shaft, critically injured. No one saw him in the intervening time. He told a fellow employee that he fell down the shaft. As a consequence of his injuries, he died 11 days later.

His widow sued, individually and as administratrix of his estate, to recover damages for his wrongful death. From a judgment on a verdict in her favor, this appeal is taken.

The freight elevator was a platform operating in a shaft closed on three sides and with the open side protected by doors which opened in the center. They could be latched on the inside by a hook-and-eye arrangement similar to but larger than those commonly found on screen doors. These doors did not close tightly and could be unlatched by slipping a knife blade or a piece of cardboare through the opening between them and lifting the hook out of the eye. There was some evidence that there was another safety device, called a bar lock, the operation of which was not very thoroughly explained, but it is clear that, whatever it was, when the doors were unlatched, a little shaking made it possible to open them. The elevator operated by what is known as a tiller cable; you pulled down on the cable to send the elevator up, and you pulled up on it to move the elevator down. If the elevator was operated properly and the doors were kept latched, none of them would be open except at the level where the elevator was standing. If, however, stating a theoretical case, a person on the second floor wanted to use the elevator, which had been left on the sixth floor, he could insert a knife blade or a piece of cardboard in the opening between the doors on the second floor and unlatch the doors and, by shaking them a little, get them open, and then, by the proper manipulation of the cables in the elevator shaft, he could bring the elevator to the second floor level, thus avoiding a climb; but, by this procedure, the elevator doors on the sixth floor would have been left open.

As to what actually happened in this case, we have absolutely no evidence. There was no testimony as to where the elevator was found after the fall; no testimony as to what, if any, elevator doors were found to be open.

The evidence concerning the construction and manner of operating the elevator doors was sufficient to take the case to the jury on the questions of whether or not the appellants had provided a safe place for their employee to work, and whether or not they had violated the provisions of the 'factory act' requiring that the openings of all elevators in storehouses, warerooms, and stores be protected, where practicable, by good and sufficient fences, gates, or other safeguards, and that all due diligence be used to keep all such means of protection closed except when necessary to have the same open that they might be used. Rem.Rev.Stat. § 7660.

Parenthetically, we will say here that instruction No. 12, complained of by appellants, stating that they were guilty of negligence, as a matter of law, if the jury should find that they failed to provide for their elevator 'all the safeguards which from the evidence you find were practicable,' was erroneous. Appellants' obligation, under the statute, was to provide 'good and sufficient fences, gates, or other safeguards.' However, we have no doubt that the trial court would have corrected this error if it had been given an opportunity so to do; the exception taken was not sufficient to apprise the trial court of the error now claimed.

From what has been said, it will appear that respondent has established: (1) that Jean Gardner fell down an elevator shaft and died as a result of his injuries; and (2) that there was evidence from which a jury could have found that appellants failed to provide a safe place for Mr. Gardner to work, and that they failed to comply with the provisions of Rem.Rev.Stat. § 7660.

Respondent, however, has failed to establish that appellants' negligence was the proximate cause of Mr. Gardner's death.

There are at least two equally reasonable explanations of Mr. Gardner's fall:

Hypothesis 1. The elevator might, some time Before Mr. Gardner's fall, have been stopped on the second floor. Some one on one of the upper floors, say the fifth, not wanting to come down after the elevator, may have opened the doors on the fifth floor and, by operating the cables, brought the elevator to that floor, thus leaving the doors open on the second floor. Mr. Gardner, seeing the doors open on the second floor and assuming that the elevator was there, may have walked into the elevator shaft. The inadequate safeguards would have been the proximate cause of his death.

Hypothesis 2. Knowing that the elevator was above him and not wanting to walk up to it, Mr. Gardner may have opened the doors on the second floor by the method indicated, with the intention of operating the cables in such a way as to bring the elevator down to him, and, while attempting so to do, may have fallen down the shaft. Were that the case, the only reason appellants' safeguards did not work, inadequate as they may have been, was that Mr. Gardner deliberately removed them to avoid the inconvenience of climbing the stairs. His own negligence would then have been the proximate cause of his fall.

(We do not mean to indicate that we believe Mr. Gardner fell from the second floor--it might have been from any floor below the sixth; nor that these are the only hypotheses that are possible. Only three things are certain in this case: the fall, the death, and that the elevator doors could be opened from the outside.)

We recognize that this is a case in which the presumption will be indulged that the decedent used due card, since there is no evidence to the contrary. Respondent still fails to make a prima facie case, because she cannot establish the negligence of the appellants as the proximate cause of Mr. Gardner's injuries by relying upon that presumption. In the case of Young v. Chicago, M. St. P. & P. R. Co., 223 Iowa 773, 273 N.W. 885, 888, speaking of the presumption of due care, the court said: '* * * this presumption only goes to the question of freedom from contributory negligence, and cannot be used to supply the need of proof of causal connection between the negligence of the defendant and the injury and death of the decedent. * * *'

In Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 P. 870, and Morris v. Chicago, M. St. P. & P. R. Co., 1 Wash.2d 587, 97 P.2d 119, 100 P.2d 19, we quoted with approval from the case of Peters v. Lohr, 24 S.D. 605, 124 N.W. 853, 855, in which it was said: '* * * A presumption is not evidence of anything, and only relates to a rule of law as to which party shall first go forward and produce evidence sustaining a matter in issue. A presumption will serve as and in the place of evidence in favor of one party or the other until prima facie evidence has been adduced by the opposite party; but the presumption should never be placed in the scale to be weighed as evidence. * * * A presumption is not evidence of a fact, but purely a conclusion. Elliott, Ev. §§ 91, 92, 93; Wigmore, Ev. §§ 2490, 2491. * * *'

In 144 A.L.R., at page 1473, there is an annotation entitled 'Presumption of due care by person killed in accident as supporting or aiding inference of negligence by defendant, or inference that latter's negligence was proximate cause of accident.' Many cases are there cited in support of the general rule that a presumption that a decedent exercised due care for his own safety cannot be used to create an inference of negligence on the part of the defendant, or to supply evidence, or to aid in the establishment of such negligence, or to show that the defendant's negligence was the proximate cause of the accident.

We have examined and considered the cases referred to in that note in which it has been held that, where there is evidence of negligence by the defendant sufficient to constitute a case submissible to a jury, in an action based upon death by accident, the presumption that the decedent was exercising due care for his own safety might at least serve the purpose of resolving any doubt in the minds of the jurors in a case of equipoise upon the subject created by the defendant's insistence that the proximate cause of the accident was not his own negligence but some conduct of the decedent. These cases, some eight in number, come from five jurisdictions, California, Kentucky, Missouri, Texas, and Utah. Only in the California cases is...