Jacobs v. Bailey

• Decision Date: 10 February 1938
• Docket Number: No. 10523.,10523.
• Citation: 118 S.W.2d 484
• Parties: JACOBS et al. v. BAILEY.
• Court: Texas Court of Appeals

118 S.W.2d 484

JACOBS et al. v. BAILEY.

No. 10523.

Court of Civil Appeals of Texas. Galveston.

February 10, 1938.

Rehearing Denied June 23, 1938.

Appeal from District Court, Galveston County; Chas. G. Dibrell, Judge.

Action by Ernest Albert Bailey against Nettie Jacobs, a widow, and others, for injuries from falling down an elevator shaft. Judgment for plaintiff, and defendants appeal.

Affirmed.

Lockhart, Hughes & Lockhart, of Galveston, for appellants.

Henry W. Flagg, of Galveston, for appellee.

CODY, Justice.

This is a personal injury suit brought by appellee against appellants, owners of the Trust Building in Galveston, for damages resulting from falling down an elevator shaft therein. Appellee will hereinafter be called plaintiff, and appellants defendants, as in the trial court.

The material allegations of the pleading on which plaintiff went to trial are to the effect: That defendants own the Trust Building, and leased offices therein to the United States Government, Department of Engineers, among other tenants; and that plaintiff, employed as a Civil Engineer by the United States Government, had his office, as such employee, in such Building. That on February 18, 1935, about 9:45 P. M., when returning to his office (after having driven one of his assistants home), as the proximate result of certain acts of negligence of defendants, of defendants' agents, etc., he was caused to fall down the elevator shaft. That the lights in the halls of the Building were out, and plaintiff entered the hall on the ground floor and first tried the door of the "North" elevator, but finding the door thereto locked, then tried the door to the "South" elevator, and finding it unlocked, was thereby caused to and did believe that the "South" elevator was in place —it being usual for defendants to leave the elevators for the use of their tenants and particularly for plaintiff's use—and plaintiff stepped through the door into what he supposed was the elevator waiting for use; but the elevator not being so in place, plaintiff fell from the first floor to the basement and was seriously injured. Defendants were charged with negligence proximately causing plaintiff's injuries in the following particulars:

(1) In operating the passenger elevators in the building without first having equipped them with a device that would prevent them being moved when the entrance doors thereto were open, contrary to article 6145a, Vernon's Ann.Civ.St., and article 1661a, Vernon's Ann.Penal Code of the State.

(2) In permitting the elevators in the building, including the "South" elevator, to be used and operated without first being equipped with a safety device that would prevent such elevators being moved from the shaft entrance door thereto, when such door was not closed.

(3) In having failed to keep the "South" elevator in place, after having left the shaft entrance door thereto open, as was usually and customarily done when the elevators were left for the use of the tenants of the building, and particularly for plaintiff, for self-operation by such tenants.

(4) In having left the lights out in the building so that the elevator and its shaft were in darkness, knowing that the tenants, and particularly plaintiff, was going to make use thereof at the time in question.

Plaintiff further alleged that the specified and enumerated acts of negligence of defendants, their agents, etc., were the proximate cause of his injuries.

Defendants answered: By general demurrer. They specially excepted to plaintiff's allegations that they were required by statute to keep safety devices on their elevators to serve the purpose plaintiff alleged, and asked to have said allegations stricken from plaintiff's petition as prejudicial. They answered further by general denial. And by way of special answer pled contributory negligence, and assumed risk, on the part of plaintiff.

To the refusal of the court to sustain their special exceptions, defendants reserved exceptions. And moved for an instructed verdict in their favor, both at the conclusion of plaintiff's evidence and at the conclusion of all the evidence, which motions the court refused, to which defendants duly excepted. Defendants excepted to the court's charge to the jury on various grounds, including the court's refusal to submit an issue on "assumed risk".

The case was submitted to the jury on special issues, of which the following—with omissions of definitions and other matter not considered essential to be reproduced —is a substantial copy:

"Special Issue No. 1. Do you find from a preponderance of the evidence that the elevator in question was not equipped with a device to prevent its movement from a floor landing while the door to the elevator shaft at said landing was to any extent open?" Answered: "It was not so equipped."

"Special Issue No. 2. Do you find from a preponderance of the evidence that the failure, if any, to have said elevator so equipped was a proximate cause of plaintiff's fall into the elevator shaft and his resulting injuries, if any?" Answered: "Yes."

"Special Issue No. 2-a. Do you find from a preponderance of the evidence that when plaintiff approached the elevator shaft on the occasion in question he found the door to the south elevator partly open?" Answered: "Yes."

"Special Issue No. 2-b. Do you find from a preponderance of the evidence that the fact, if it be a fact, that said door was partly open at the time plaintiff approached the elevator shaft was due to any negligence on the part of defendants, their agents, servants and employees?" Answered: "Yes."

"Special Issue No. 2-c. Do you find from a preponderance of the evidence that such negligence, if any, as inquired about in Special Issue No. 2-b, was a proximate cause of plaintiff's falling into the elevator shaft and his resulting injuries, if any?" Answered: "Yes."

"Special issue No. 3. Do you find from a preponderance of the evidence that in shoving back the door and stepping through same, as testified by plaintiff, plaintiff was guilty of contributory negligence, as that term is hereafter defined?" Answered: "No."

And in answer to special issue No. 4, the jury found damages in the sum of $10,000.

Defendants contend that under the undisputed facts plaintiff was guilty of contributory negligence as a matter of law, and that the court should have instructed a verdict in their favor; also, that the court should have rendered judgment for defendants non obstante veredicto; also, that the rule of assumed risk is not limited to the relationship of master and servant, and that the refusal of the court to submit a special issue thereon was reversible error.

The relevant facts about which there is no dispute are these: Plaintiff was employed by the United States Government as a Civil Engineer, and had under lease a number of offices in defendants' building. On the occasion in question, plaintiff was getting out work which required that he work late at nights, and shortly before the elevator service was to be stopped for the night, quit working for the purpose of driving out to her home a woman assistant who was accompanied by her husband. Plaintiff's office was on the fifth floor of the building; and from that floor the night janitor brought plaintiff and his companions down in an elevator. During the short time plaintiff was away driving his assistant and her husband home, the night janitor turned the lights off in the building, locked it up, and left. Upon his return plaintiff let himself in with a key he had been furnished by the head janitor. From the street lights through the entrance door of the building, plaintiff could see the outline of the elevator shaft and rang the bell to call the elevator; when his call was not answered he concluded that the night janitor had gone home. Plaintiff found the entrance door to the "South" elevator on the ground floor was ajar. He opened it wide and stepped in, and reached to turn on the elevator light. As the elevator had been left at the second floor, plaintiff fell down through the...