Kranzusch v. Trustee Co.

• Decision Date: 12 December 1916
• Docket Number: 13327.
• Citation: 161 P. 492,93 Wash. 629
• Parties: KRANZUSCH v. TRUSTEE CO.
• Court: Washington Supreme Court

161 P. 492

93 Wash. 629

KRANZUSCH v. TRUSTEE CO.

No. 13327.

Supreme Court of Washington

December 12, 1916

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by E. H. Kranzusch against the Trustee Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Smith &amp Mack, of Spokane, for appellant.

A. E Gallagher, of Spokane, for respondent.

FULLERTON J.

Plaintiff's minor child, four years of age, was accidentally killed while a passenger in an elevator operated in an office building belonging to defendant. In an action for damages for such death, judgment was rendered in favor of plaintiff upon a verdict awarding $3,576. The defendant appeals.

The respondent presents a motion to dismiss the appeal based on the grounds: (1) That appellant's abstract of record does not contain sufficient of the evidence and records to enable the court to pass upon the merits of the appeal, and that the evidence given is misstated; and (2) that the abstract is not indexed as required by statute and rules of court, in that the testimony of the witnesses is merely indexed under the head 'Evidence, pages 4 to 30,' without specially indexing the names of the individual witnesses. In respect to the motion it suffices to say that the insufficiency of the abstract is not ground for dismissing the appeal, under Laws 1915, p. 302, § 6 (Rem. 1915, Code, § 1730-6). By that section it is provided that when the appellant's abstract of record is found to be 'insufficient and defective under the terms of this act or the rules of the Supreme Court, the appeal shall not be dismissed by reason thereof, but the appellant may be allowed to file an amended or supplementary abstract * * * upon such terms as may be fixed by the order of the Supreme Court.' The motion is not to require the abstract to be amended; hence its defects need not be considered.

The appellant moves to strike the supplemental transcript filed by respondent. This sets out the motion for new trial, order of court, and verdict of the jury in a prior trial of this same cause. The matter was not introduced in evidence, and we find it in no way material to the present appeal from the judgment on a second trial. The motion is granted.

The appellant also moves to strike respondent's supplemental abstract for the reason that it is a repetition of the original abstract, set out in ampler form and largely by questions and answers. This motion is denied. The supplemental abstract, perhaps, does go over the same ground as the original, but it is the respondent's privilege to file such an abstract where he deems the abstract presented by appellant inadequate or incorrect. Seemingly the abstract is more full than the necessities of the case required, but the same rule applies to a supplemental abstract that applies to an original one; the remedy is to move to correct it, not to strike.

The principal ground urged as error is the insufficiency of the evidence to sustain the verdict. The assignments suggesting the question are grouped and argued by the appellant under the one head, namely, Did the plaintiff make a case for the jury on any grounds of negligence alleged or proven?

The mother of the child and the child entered the elevator of the defendant's building on the second floor landing for the purpose of going to one of the floors above. The elevator was entered through a sliding door placed in the grillwork, which inclosed the elevator shaft or well. This grillwork was set back 3 1/2 inches from the well, and extended upward to within 4 inches of the ceiling above. Across the gap of 3 1/2 inches between the grillwork and the well in which the cage moved up and down, the third floor projected horizontally into the well some 3 inches, forming, in connection with the grillwork, a sort of cavity. The indicator, which showed passengers at what floor the moving cage was located, was placed above the sliding door in the grillwork. This indicator was operated by a shaft, on which were a wheel and setscrew; this mechanism of shaft, wheel, and screw extending into the open space on the inside of the grillwork about 2 1/2 inches. The movement of the elevator cage up and down would bring this well and setscrew directly opposite the door of the cage. The cage had no inside door, and the door space was always open as the cage passed by the indicator mechanism thus extending toward the well, and as it passed the floor projecting into the well.

Respecting the manner of the child's death there is no dispute in the evidence. In some way the child was thrown down at about the time the elevator started, so that his body protruded beyond the open door of the elevator cage, permitting it to be caught between the elevator floor and projecting floor of the building, drawn from the elevator cage and dropped to the bottom of the well as the elevator passed on. The evidence as to how the boy got into his precarious...