Jones v. Co-Operative Ass'n of Am.

• Decision Date: 11 November 1912
• Parties: JONES v. CO-OPERATIVE ASS'N OF AMERICA.
• Court: Maine Supreme Court

84 A. 985

109 Me. 448

JONES

v. CO-OPERATIVE ASS'N OF AMERICA.

Supreme Judicial Court of Maine.

Nov. 11, 1912.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Lucinda N. Jones against the Co-operative Association of America. The court orders nonsuit, and plaintiff excepts. Exceptions sustained.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, KING, and HALEY, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff.

Oakes, Pulsifer & Ludden, of Auburn, for defendant.

WHITEHOUSE, C. J. This is an action to recover damages for personal injuries to the plaintiff resulting from the alleged negligence of the defendant in the operation and control of the elevator in its store in Lewiston, known as the "Peck Department Store." The negligence complained of is described in the plaintiff's declaration in substance as follows: The defendant carelessly and negligently placed in charge of the elevator, to run and operate the same, an inexperienced, incompetent, and unsuitable boy of immature years, contrary to law, and negligently permitted another of its employés, a boy of immature years, to ride on the elevator without any business or employment thereon. The boy in charge of the elevator started the same by means of the lever, and ran it, with the plaintiff and the other boy thereon, down to the first floor of the store, and there stopped it for the plaintiff to alight; and while the plaintiff, in the exercise of due care, was attempting to alight by stepping out onto the first floor, the boy in charge of the elevator negligently failed to guard and protect the lever, and left the same unattended and unguarded, and while so left the other boy meddled with the lever and set the same in motion, whereby the elevator was suddenly and without warning started in motion with great force, so that the plaintiff was thereby thrown with great force and violence to the first floor of the store, fracturing the bone of her arm near the shoulder, and causing the other injuries of which she complains.

It is provided by section 1 of chapter 4 of the Laws of 1907 that "no person, firm or corporation shall employ or permit any person under the age of fifteen years to have the care, custody, management or operation of any elevator," under the penalty prescribed in section 2.

Peter Hayes, the boy employed to operate and control the defendant's elevator at the time of the plaintiff's injury, was 14 years and 5 months old.

The fact that Hayes was employed by the defendant, in violation of law, to operate and control this elevator, was competent, but not conclusive, evidence of the defendant's negligence with respect to all consequences resulting from a failure of duty on the part of such boy of immature age; and if it is unexplained, and taken in connection with other facts and circumstances, it may be conclusive evidence of such negligence on the part of the defendant. As stated by this court in Larrabee v. Sewall, 66 Me. 381: "It may be 'strong evidence' that a party is in the wrong, when he is doing that which the law forbids him to do." Neal v. Rendall, 98 Me. 69, 56 Atl. 209, 63 L. R. A. 668; Moore v. Maine Central R. R., 106 Me. 297, 76 Atl. 871. In Bourne v. Whitman, 209 Mass. 166, 95 N. E. 404, 35 L. R A. (N. S.) 701, the defendant was operating an automobile without a license, and it is said in the...