Hotel Operating Co. v. Saunders' Adm'r

• Decision Date: 31 May 1940
• Citation: 283 Ky. 345,141 S.W.2d 260
• Parties: HOTEL OPERATING CO. v. SAUNDERS' ADM'R et al.
• Court: Kentucky Court of Appeals

141 S.W.2d 260

283 Ky. 345

HOTEL OPERATING CO. v. SAUNDERS' ADM'R et al.

Court of Appeals of Kentucky

May 31, 1940

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division; Eugene Hubbard, Judge.

Action by George W. Saunders' Administrator (Edward C. Langan) and others against the Hotel Operating Company for the death of George W. Saunders, deceased. From a judgment for plaintiffs, defendant appeals.

Judgment reversed with directions.

Trabue Doolan, Helm & Stites, Harris W. Coleman, and Watson Clay all of Louisville, for appellant.

Morris & Garlove and Charles W. Morris, all of Louisville, for appellees.

SIMS Commissioner.

George W. Saunders, an expert electrician and elevator repairman was electrocuted on Aug. 3, 1937, while inspecting appellant's elevator. He was an employee of the American Elevator & Machine Company, which will hereinafter be referred to as the company, and the fatal accident occurred while he was attempting to ascertain what supplies were necessary for the company to order in complying with its contract with appellant to repair its elevator. Saunders' administrator recovered judgment for $12,500 in this action and appellant assigns five reasons for reversal, one of which is that the trial judge should have directed a verdict in its favor. We have concluded appellant was entitled to a directed verdict, therefore it will be unnecessary to consider the other alleged errors.

Henry R. Wrocklage, an elevator inspector for the city of Louisville, inspected this elevator on July 27, 1937, and on that day addressed a letter to appellant enumerating in separate paragraphs, and by number, eleven defects which he found in the elevator. We quote from that letter the first paragraph; item No. 10 of the list of repairs; and the last paragraph; as being pertinent to a decision of this cause: "This Department made an inspection of your electric passenger elevator, and are recommending the following items to be repaired on elevator, so same will be in safe running condition and also pass the approval of this office: ***

"10. Have all wiring put in first class condition and free from grounds. Have conduit for said wiring properly grounded. ***

"We trust you will cooperate with us and have the above repairs made within the next five days, as this elevator is in a very dangerous condition. (Our italics.) If the repairs are not taken care of in the time mentioned above, it will be necessary for us to condemn elevator and same cannot be used until the above recommendations have been made."

Appellant made three copies of this letter, mailing one to the company and the other copies were mailed to two other elevator concerns, requesting bids for the repairs specified in the letter. We quote the following from the company's letter addressed to the appellant on July 29th:

"We are pleased to quote you on the following repairs to your electric passenger elevator: ***

"No. 10. We will check over all wiring, clear up any grounds and will provide the proper grounding of all conduit in accordance with code. ***

"We will furnish all material and labor and make repairs as enumerated in the above items during the regular working hours of the trade for the sum of $394."

Appellant accepted the company's bid with the understanding it would start work without delay.

On the morning of Aug. 3, 1937, two employees of the company, Saunders and F. E. Hayden, a graduate of electrical engineering, went to the hotel. Without notifying anyone in authority at the hotel of their presence or business, they went directly to the elevator. They informed the colored boy operating the car who they were and their mission, and directed him to run the car while Saunders was on top of it inspecting the hatch and machinery. Peters, the operator, took the car to the top and brought it down and then at the direction of Hayden or Saunders, took it back up and stopped a little below the top floor. Saunders took hold of the conduit which was not grounded and he was electrocuted.

The petition alleged appellant carelessly maintained this elevator by not grounding, insulating and protecting the wiring and left them in a dangerous condition, which fact was known to appellant and was unknown to decedent and could not have been discovered by him in the exercise of ordinary care. The answer as amended, after traversing the petition affirmatively pleaded contributory negligence and assumption of risk on the part of Saunders; that it was customary for workmen to notify some person in authority when they entered a building such as appellant's before starting repairs, and that Saunders failed to notify any of appellant's officers or persons in charge that he had entered the premises for repair work. Issues were joined by a reply and an...