Johnson v. Hopkins

• Decision Date: 15 October 1925
• Docket Number: 3 Div. 718
• Citation: 213 Ala. 492,105 So. 663
• Parties: JOHNSON v. HOPKINS.
• Court: Alabama Supreme Court

105 So. 663

213 Ala. 492

JOHNSON v. HOPKINS.

3 Div. 718

Supreme Court of Alabama

October 15, 1925

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action for damages for personal injury by Mrs. M.K. Hopkins against W.A. Johnson. Judgment for plaintiff, and defendant appeals. Affirmed.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

T.E Martin, of Montgomery, and J.S. Edson, of Miami, Fla., for appellee.

GARDNER J.

Appellant on May 26, 1923, owned and operated an apartment house in the city of Montgomery known as the Kenwood Apartments consisting of several floors, reached by means of an automatic elevator. On that date appellee went to the Kenwood Apartments to confer with a Miss Watson, her business associate, who occupied a room on the fourth floor. She walked down the hall to take the elevator, but the door to the elevator shaft was open and she stepped into the shaft, receiving injuries for which she sued and recovered damages. Plaintiff charged that defendant negligently failed to keep the elevator door closed and the elevator shaft barred. The cause was submitted to the jury upon the general issue joined and the plea of contributory negligence. The only questions here urged relate to the action of the court in refusing the affirmative charge at defendant's request, and denying the motion for a new trial.

The elevator was operated for the convenience of the guests and those having business with them. Under the circumstances here shown, plaintiff was an invitee upon the premises (Mudd v. Gray, 200 Ala. 92, 75 So. 468), and there was an implied invitation to plaintiff to use the elevator on this occasion. The relation of passenger and carrier arose between plaintiff and defendant, placing upon the latter that high degree of care as to her safety required by such relationship, not only while actually aboard the elevator, but also in entering it. Morgan v. Saks, 143 Ala. 139, 38 So. 848; O'Rourke v. Woodward, 201 Ala. 267, 77 So. 679; Tippecanoe Loan & Trust Co. v. Jester, 180 Ind. 357, 101 N.E. 915, L.R.A.1915E, 721, and notes.

The case of Morgan v. Saks, supra, is here controlling in principle. While in that case there was an express invitation by the owner of the store that the plaintiff customer take the elevator to the second floor, yet this does not seem to distinguish that case from this, as the implied invitation to plaintiff in the instant case served a like purpose. In the Saks Case the court said:

"And clearly, leaving the door of the shaft open, *** with no bar or other obstruction to prevent the plaintiff from walking into it under the supposition that the elevator was there, was negligence for which the defendant is liable, unless the plaintiff was guilty of contributory negligence."

That the shaft was left open by the defendant in the Saks Case was without dispute, and negligence was declared as a matter of law.

In the instant case the shaft was open; the door thereto was thrown back when she went to enter. The elevator it seems was on the fourth floor. We have not overlooked the fact that it was an automatic elevator, as described in Shellaberger v. Fisher, 143 F. 937, 75 C.C.A. 9, 5 L.R.A. (N.S.) 250, and the proof to the effect the metal lattice door guarding the shaft must close else the elevator will not start. There is further proof to the effect that the metal door may be pushed back far enough to so fasten as to remain open. Plaintiff insisted she did not open it, but found it so as she went to take the elevator.

As to whether or not the door being open was to be attributed to the negligence of any one in defendant's employ, ...