Gardner v. Waterloo Cream Separator Co.

• Decision Date: 02 April 1907
• Citation: 111 N.W. 316,134 Iowa 6
• Parties: ANDREW J. GARDNER v. WATERLOO CREAM SEPARATOR COMPANY, Appellant
• Court: Iowa Supreme Court

111 N.W. 316

134 Iowa 6

ANDREW J. GARDNER v. WATERLOO CREAM SEPARATOR COMPANY, Appellant

Supreme Court of Iowa, Des Moines

April 2, 1907

Appeal from Blackhawk District Court.-- HON. A. S. BLAIR, Judge.

ACTION to recover damages for personal injuries resulting from falling down an open elevator shaft on defendant's premises. Verdict and judgment for the plaintiff. Defendant appeals.-- Affirmed.

Affirmed.

Courtright & Arbuckle, for appellant.

Reed & Tuthill, for appellee.

OPINION

MCCLAIN, J.

The premises on which the accident occurred had been occupied by the defendant for about ten days, and were being put in order for use as a manufacturing establishment, when plaintiff, in the employ of a lumber company, brought to the premises in a sleigh two sash which had been ordered by defendant. Plaintiff drove along the railroad track beside which defendant's building stood, crossed a platform provided for convenience in loading cars from the building, and approached a sliding door furnishing access to the platform from the building. This door had no handle or other means of opening it from the outside, but was provided on the inside with a hook for a fastening. It had been used several times during the day before plaintiff approached it as a means of ingress to the building, and plaintiff found it unfastened and pushed it open, and, on stepping inside and closing it after him, fell into an unguarded elevator shaft which was within eighteen or twenty inches of the inside of the door receiving the injuries for which he asks damages.

The contention with reference to the facts on which it is claimed for appellant that there was no negligence on its part, and contributory negligence on the part of plaintiff, is that the door used by plaintiff was not the usual and proper method of entering the building, that the door itself furnished a sufficient guard or protection for the entrance to the elevator shaft, and that plaintiff in the exercise of ordinary care could have seen the opening and avoided the injury. The evidence tended to show, however that other persons had entered the building over the platform, and through the door by which plaintiff entered, during that day and on preceding days, and that the entrance to the premises from the street on the opposite side was blocked by snow. It also appeared that other persons had been in the habit of driving along the railroad track, which was suitable for use as a driveway, and entering the building across the platform.

I. The door through which plaintiff entered had been left unhooked by a person who had been admitted to the building through this same door a few minutes before plaintiff entered, and the first contention for appellant is that as this door furnished the guard for the entrance to the elevator, and access to the open shaft by the plaintiff was due to the negligent act of a third person, such act, and not the negligence of the defendant in failing to protect the elevator shaft or warn the plaintiff of the danger, was the proximate cause of the injury to plaintiff, and therefore that defendant is not liable. But we think that a door which is allowed to be used for access to a building does not constitute a sufficient guard for an elevator shaft situated eighteen inches from such door, and that the defendant owed to those who came in through the door the duty of protecting them against the danger of falling into the shaft, either by a barrier provided at the entrance to such shaft, or by warning given of the danger, and that the act of the person who entered the door preceding the entrance by plaintiff was not the proximate cause of plaintiff's injury.

It appears that the person who entered preceding plaintiff had been taken up the elevator by an officer of the company, in charge of the building, who took no precaution to see that the door was left hooked, and that an employe of the defendant standing near by and charged with a duty in reference to the safety of persons approaching the elevator shaft saw plaintiff enter the door and gave him no warning as to the shaft. Under these circumstances it is clear that the proximate cause of the injury to plaintiff was not the act of a third person in leaving the door unhooked but the negligence of the defendant in not furnishing a sufficient barrier or giving proper warning. The case of Cole v. German Savings and Loan Society, 124 F. 113 (59 C.C.A. 593, 63 L. R. A. 416), is not in point, for there the owner of the premises had provided a sufficient gate at the elevator opening, and this gate was opened for the plaintiff by a stranger supposed by plaintiff to be the elevator boy, but for whose conduct the owner was in no way responsible. Counsel for appellant also rely on the case of Parmenter v. Marion, 113 Iowa 297, 85 N.W. 90, where the negligent act of the owner of premises abutting on a street in throwing a bale of hay from a platform projecting over the street was held to be the proximate cause of an injury, and that the city was not liable on account of allowing the platform to be improperly maintained in the street. In that case the efficient cause of the injury was held to be the act of the owner of the premises in throwing down the bale of hay, and the improper maintenance of the platform in the street only the condition under which the injury resulted. We cannot see that there is any essential...