Helgeson v. E. B. Higley Co.

• Decision Date: 16 June 1910
• Parties: HELGESON v. E. B. HIGLEY CO.
• Court: Iowa Supreme Court

148 Iowa 587

126 N.W. 769

HELGESON

v.E. B. HIGLEY CO.

Supreme Court of Iowa.

June 16, 1910.

Appeal from District Court, Cerro Gordo County; C. H. Kelley, Judge.

Action at law to recover damages for personal injuries received by plaintiff while attempting to operate a freight elevator in a building owned and operated by defendant. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Reversed.Hewitt, Miller & Wallingford and C. Woodbridge, for appellant.

Blythe, Markley, Rule & Smith and Senneff & Bliss, for appellee.

DEEMER, C. J.

Defendant is a corporation operating a cold storage warehouse in the city of Mason City. For the purpose of carrying goods and produce from one story to another in this building, it had installed a freight elevator, which was operated by electric power. No system of bells or signals was provided, but it promulgated a rule among its employés to the effect that before any of them should move the elevator, they must call up or down the shaft to warn other employés of the proposed movement. The case as made by the petition is that plaintiff was employed by defendant on or about November 22, 1906, to work about the warehouse, and “that the defendant employed and had in charge of the management of said business a superintendent or manager, and that on, to wit, the 1st day of December, 1906, the plaintiff was ordered and directed by the said defendant through its superintendent to use and operate said elevator in and about his employment and for the purpose of carrying and conveying certain produce from the basement of said building upward to other floors thereof; that while this plaintiff was carrying out the directions of the defendant and unloading produce from said elevator in the basement, and while said plaintiff was in the exercise of due care on his part, he inserted his hand, arm, and a portion of his body over the floor of said elevator as he was required to do under the direction of the defendant, in the performance of his duties, and under the direction of the defendant, through its superintendent, the said defendant through its superintendent negligently, carelessly, and without regard to its duties owing this plaintiff moved or caused to be moved the said elevator suddenly and without warning to the plaintiff, and in violation to the rules which required call to be made to plaintiff; that the said elevator so moved or caused to be moved by the defendant through its superintendent moved violently and rapidly upward while he so had his hand, arm, and a portion of his body inserted over the floor of said elevator; that said elevator was so drawn upward through the elevator shaft, and plaintiff's hand and arm were caught between the floor of said elevator and the side of said elevator shaft, whereby his arm was mangled, crushed, and torn, and he was thereupon violently thrown upon the floor of said basement.”

Other allegations of negligence were made, but this was the only one submitted to the jury. Defendant's answer was a general denial and a plea of assumption of risk. The trial court did not submit the issue of assumption of risk, but submitted the case wholly upon the question of whether O'Keefe, defendant's superintendent, started the elevator without giving any warning as stated in the petition from which we have quoted. The jury was also properly instructed upon the issue of contributory negligence. This appeal presents but two matters which will be considered. One is the sufficiency of the testimony to show that O'Keefe started the elevator, and the other the liability of the defendant for the negligence of O'Keefe in the event it be found that he started the elevator without warning. The testimony shows that O'Keefe was defendant's general manager, and had charge of the business at the warehouse when the accident occurred, and it also shows that he properly promulgated rules with reference to giving warning before any of the employés should attempt to move the elevator. It is claimed, however, that he himself violated the rules and started the elevator without giving any warning, thus causing the injury of which plaintiff complains. There is no direct testimony as to what started the elevator to move. Plaintiff testified that he did not do it, and O'Keefe was equally positive that he did not. In the building at the time were Griffith, defendant's engineer, and E. B. Higley, president of defendant company, in addition to plaintiff and O'Keefe, and it is not claimed that either Griffith or Higley started the elevator. Plaintiff testified as follows: “I gave a signal by calling into the elevator shaft twice, ‘elevator down.’ After that, I reached for the rope or cable to start the elevator. When the elevator started up, I had not touched the rope. I did not pull any rope there at all. When the elevator started up, it is pretty hard to say how rapidly it did go. I tried to get out of it to escape from being caught. It caught my arm just below the elbow between the top of the casing and the door entering into the elevator shaft and the floor of the elevator. I should judge that the floor of the elevator was somewheres about between three and four feet from the floor of the basement where I was standing. The door that leads into the elevator shaft was somewhere from 5 1/2 to 6 feet high. After the accident I was coming up the stairs out of the basement. I saw Pete Burke and Mr. Higley. Mr. O'Keefe wanted to know how it happened, and I told him that I was going to use the elevator, and I had hollered for it, and that I reached in and was going...