Getty v. Hutton

• Decision Date: 03 March 1920
• Docket Number: 15587.
• Court: Washington Supreme Court
• Parties: GETTY et al. v. HUTTON.

188 P. 10

110 Wash. 124

GETTY et al. v. HUTTON.

No. 15587.

Supreme Court of Washington

March 3, 1920

Department 1.

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

Action by H. W. Getty and others against L. W. Hutton. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

McCarthy & Edge and George D. Lantz, all of Spokane, for appellant.

Post Russell & Higgins, of Spokane, for respondents.

MACKINTOSH J.

The appellant owns an office building in the city of Spokane wherein is located a passenger elevator in which the six year old child of the respondents received an injury, for which the respondents brought this action to recover for the loss of the child's services during her minority, and for the expense which they had incurred in caring for her as a result of her injuries. The trial resulted in a verdict favorable for the respondents, and this appeal was brought by appellant, relying upon two assignments of error First, relating to the instruction given by the court in regard to the absence of safety devices from the elevator and, second, because of the following instruction:

'The law presumes that a child of the age of Virginia Getty is incapable of giving testimony in a lawsuit. Whether she shall or shall not be permitted to testify is a matter in the discretion of the court. The fact that she has not testified in this case is therefore not a matter of comment or consideration by you.' The negligence charged against appellant was: First, that the elevator was not equipped with a safety device which would make it impossible to move the elevator while the door remained open; second, the elevator operator was negligent in starting the elevator suddenly when the door was open; third, that the controller handle was weak and out of repair. Upon the second and third grounds of negligence evidence was introduced which was sufficient to carry the case to the jury upon those points. Upon the first ground of negligence it is contended by the appellant that there was not competent evidence rendering that phase of the case submissible to the jury.

The testimony shows that in the city of Spokane at the time of the accident there were in operation some 165 passenger elevators, and that upon none of them, without regard to the class of building in which they were located, was there installed any such safety device as the respondents claim should have been in use upon the elevator in question. The testimony shows further that there are safety devices which will prevent the moving of an elevator while the doors are open, but that such devices are impracticable in the operation of passenger elevators in office buildings. The testimony also shows that such a device was at one time used on the passenger elevators in the Spokane & Eastern Trust Company's office building, but that it had been discarded. The expert who was called upon to testify in regard to these appliances, a man of many years' experience in the elevator business, and for 25 years last past in the employ of the Otis Elevator Company, testified that such appliances were used in department stores and apartment houses, but that 'I have seen but one or two elevator installations of this kind in office buildings, one of which was in Seattle and the other in Portland,' and that he had seen those appliances some eight years previous to the time at which he was testifying. The testimony further showed that a month after the time of the injury to the Getty child such safety device had been installed in the telephone building in Spokane, the elevator in that building, however, not being used to any appreciable extent by others than employés of the telephone company, the building not being what is known as an office building; and that such appliances had been installed some five months after the accident in the Crescent department store in Spokane, both the telephone building and the department store elevators being used, in the main, by women and children. This is a fair summary of the testimony bearing upon the question of the safety device.

The owner and operator of a passenger elevator is held to the highest degree of care compatible with the practical operation of the elevator. Edwards v. Burke, 36 Wash. 107, 78 P. 610; Perrault v. Emporium Department Store Co., 71 Wash. 523, 128 P. 1049; Atkeson v. Jackson's Estate, 72 Wash. 233, 130 P. 102; Davis v. Burke, 90 Wash. 495, 156 P. 525.

But this rule does not call for the installation and use of appliances in connection with the elevator which are not compatible with its practical operation, taken in connection with the class and character of the building in which the elevator is being used. The testimony in this case would...