John R. Coppin Co. v. Richards

• Decision Date: 31 May 1921
• Citation: 191 Ky. 720,231 S.W. 229
• Parties: JOHN R. COPPIN CO. v. RICHARDS.
• Court: Kentucky Court of Appeals

231 S.W. 229

191 Ky. 720

JOHN R. COPPIN CO. v. RICHARDS.

Court of Appeals of Kentucky.

May 31, 1921

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by W. L. Richards, administrator, against the John R. Coppin Company. Judgment for plaintiff, and defendant appeals. Affirmed

O. M Rogers and Wm. J. Deupree, both of Covington, and Clore Schwab & McCaslin, of Cincinnati, Ohio, for appellant.

T. J Edmonds and R. C. Simmons, both of Covington, for appellee.

SAMPSON J.

The $7,000 judgment which this appeal seeks to reverse was recovered by the administrator of Sidney Harris, in the Kenton circuit court, against the John R. Coppin Company Incorporated, for the death of Harris in an elevator accident upon the averment and proof by circumstantial evidence that the death was the result of the negligence of the agents and servants of the corporation. Harris was a young man about 24 years of age, in good health and a trained electrical worker. He was engaged by a firm of electricians, independent contractors, to help them install lights and electrical fixtures in the garage part of the John R. Coppin Company's store building in the city of Covington. To do the work Harris and his associates were required to carry the wire from a connection in the ceiling of the first story of the building through the hole made in the floor for the elevator shaft to the basement. The wire had to be incased in conduits so as to make it safe, and attached to the walls of the building and the supports of the elevator in the shaft so as to make it secure. While laying on the floor of the first story with his head and shoulders extending into the elevator shaft, his face downward, engaged in connecting the electric wire or conduit to some part of the shaft equipment or building, the elevator car which was at the third floor above noiselessly descended and caught and killed Harris. The defendant company denied negligence on its part and pleaded contributory negligence on the part of Harris. A trial resulted in a verdict for $7,000, on which the judgment, from which this appeal is prosecuted, was rendered.

The John R. Coppin Company appeals, assigning as grounds for reversal of the judgment the following:

(1) The pleadings do not support the judgment.

(2) The court admitted incompetent evidence of the plaintiff over the objection of the defendant company.

(3) The court should have sustained defendant's motion, made both at the conclusion of plaintiff's evidence and at the conclusion of all the evidence, for a directed verdict in its favor.

(4) The court erroneously instructed the jury as to the law of the case.

Each of these contentions will be considered, but before we do so a statement of the facts somewhat in detail will be given.

The Coppin Company owned a large seven-story building in the city of Covington, in which was located three elevators, two of which were near the front of the building and used for carrying passengers, while the third was in the rear of the building and was used for carrying freight between the basement and the fourth story, its terminus. The accident to and death of Harris happened in the freight elevator shaft. The Coppin Company uses the first, second, and third stories of the building in its retail store business, and employed the seventh floor and the basement for storage purposes. The fourth floor is leased to and occupied by the Kenton Pharmaceutical Company, a patent medicine concern, which has the use of the freight elevator to carry its goods up and down, and had storage in the basement. This last-named company had three persons in its employ at the time of the accident, a pharmacist, an expressman, and a porter named Lee. The expressman was out of the building and had been for some time. The pharmacist never used the elevator, except upon rare occasions when the porter Lee was out, and says he did not use or attempt to use it on the day of the accident, and there is no evidence or even suggestion that he did do so. We will consider Lee's connection with the elevator later.

The Coppin Company employed a number of people both men and women in and about the store, but none of these used the freight elevator on the morning of the accident except Steinborn, the shipping clerk, and four porters named Davenport, Page, Harris, and Brogan, unless some one not accustomed to use it did so, and there is no evidence of this.

The real question of fact in the case being who started the elevator which killed Harris, we see by the process of elimination that only the four porters of the Coppin Company, the pharmaceutical company's porter Lee, and the deceased and the other two electricians need be considered, for they are the only ones shown to have had the opportunity to set the elevator in motion.

It is not seriously argued, nor could it be, that Harris or any of the electricians started the car, for every motive and reason is against such inference, and the direct evidence shows they did not do so. Coming now to the porter Lee who was in the basement at the time Harris met his death, the evidence shows that he had been working around the place for some months, and on the morning of the accident had carried a load of express from the fourth floor of the building down on the freight elevator to the first floor and to the basement, where he left it and began looking about some boxes. While thus engaged, the porters of the Coppin Company took the elevator to the third floor. Lee waited a short time for the elevator to return and then called up to those in charge of it on the third floor and asked for it, but was told that the elevator was in use but he could have it later. He then sat down on a box in the basement to wait for the elevator which he desired to use in taking his truck back to the fourth floor. He was close to the elevator shaft, and the electricians were working in it above connecting the wires and conduits. Harris, the deceased, called to Lee to hand him a wrench which was in the basement. Lee looked for it, but did not at first see the wrench, whereupon Harris told Lee it was on a box, and Lee took it and tried to reach it up to Harris, who was lying on his stomach on the floor above with his head and shoulders projecting into the elevator shaft and looking down at Lee.

Finding the distance too great, Lee procured a keg and stood on it and reached the wrench to Harris. When he stepped down, he glanced up the shaft and saw the elevator noiselessly descending and very near Harris, who was engaged in his work. The eminent peril of Harris so excited Lee that he began to scream, "Stop the elevator!" but, before Harris did or could move, his head and shoulders were caught between the elevator car and the edge of the concrete floor and so mashed that he died shortly thereafter. It is insisted by appellant company that Lee started the car, or at least it argues that the inference to be drawn from the evidence is as great that he started the car, as that any other person, including the Coppin Company's employés, started it. This insistence is based upon the fact that he was accustomed to operating the car and had been waiting for it to carry his truck to the fourth floor, that he was close to the cable by which the elevator was operated, and that his desire for the elevator had prompted him to pull the cable and cause the car to descend. But there is no evidence to support this theory. Lee testified he did not start the car; that he was not in reach of the cable, and did not intend to or try to operate the car. He says the rule was to call "elevator" when one wanted to use the car, and if it was in use the one using it would inform the one wanting it and he would have to wait.

When told that morning that the car was in use, Lee sat down to wait, and did wait. There is no presumption that Lee would have violated the rule about the elevator that morning, especially when there was absolutely no evidence that he had ever done so before. The evidence shows that it only took the elevator a few seconds to travel from the third floor to the first floor. Lee could not have started the elevator unless he did so before Harris asked him to hand up the wrench. When this request was made by Harris, the wrench could not be found by Lee, and he looked around for it, and when he found it he tried to hand it up to Harris, but found he could not reach him, so he obtained a keg and stood upon it so as to pass the wrench to Harris, who was then reaching down through the elevator hole as far as he could. After reaching the wrench to Harris, he stepped down from the keg and glanced up into the shaft and saw the elevator coming down, but not quite to the first floor. Lee was sitting down when Harris asked for the wrench. These facts conclusively prove that Lee did not start the elevator, for if he had done so the car would have reached the first floor where Harris was long before it did. In other words, the time occupied by Lee in finding and handing up the wrench was much greater than that required for the elevator car to run from the third floor to the first floor, and Lee did not have an opportunity to operate the cable during that time. Aside from this, every other circumstance appears to refute the theory that Lee started the car, and this we will advert to later.

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