McAlister v. Thomas & Howard Co.

• Decision Date: 30 June 1921
• Docket Number: 10666.
• Citation: 108 S.E. 94,116 S.C. 319
• Parties: MCALISTER v. THOMAS & HOWARD CO.
• Court: South Carolina Supreme Court

108 S.E. 94

116 S.C. 319

MCALISTER v. THOMAS & HOWARD CO.

No. 10666.

Supreme Court of South Carolina

June 30, 1921

Appeal from Common Pleas Circuit Court of Greenville County; J. W De Vore, Judge.

Action by R. E. McAlister against the Thomas & Howard Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. J McSwain, of Greenville, for appellant.

H. P Burbage and J. Robt. Martin, both of Greenville, for respondent.

GARY C.J.

This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant. The complaint alleges:

" That the defendant is a duly chartered corporation, and is engaged in business as a wholesale merchant; one of its main places of business being the city of Greenville, S. C.

That on or about the 31st day of March, 1919, plaintiff was standing on the first floor of the building occupied by said Thomas & Howard Company, near the elevator shaft used by the latter in operating an elevator and hauling merchandise and customers and others thereupon. That while thus standing near said elevator shaft, around which was no guard, guard rail chain, or other protection to prevent people from falling through, plaintiff moved backward to dodge a hand truck passing through the passage occupied by him, and, not knowing of the existence of the open elevator shaft, fell and plunged through and down said shaft a distance of 20 or 30 feet, and struck the hard surface below. That both of plaintiff's legs were broken, his right arm crushed and broken, and the bones of his foot horribly crushed and splintered.

That plaintiff was standing near the elevator at the special instance and request of the defendant, Thomas & Howard Company, its agents and employees, and was at the times aforesaid on his way to a point near said elevator at the request and suggestion of the defendant, Thomas & Howard Company, its agents and employees, where he was told and invited to go for the purpose of inspecting and purchasing a lot of merchandise," etc.

The defendant denied the allegations of the complaint, and by way of defense alleged:

"That the injuries sustained by the plaintiff were due in the first place to his own carelessness and negligence in stepping into an elevator shaft, which was well lighted and entirely obvious to the most casual glance, and that further and in addition the plaintiff was guilty of contributory negligence, which combined and concurred with the alleged negligence of this defendant as a proximate cause thereof, in that the plaintiff without taking heed and without availing himself of the abundant light, stepped into the open elevator shaft, thus causing his own injury."

The jury rendered a verdict in favor of the plaintiff against the said defendant for $2,500.

The defendant appealed upon exceptions the first of which is as follows:

"That the presiding judge erred in modifying and changing the first request of defendant, Thomas & Howard Company, so as to instruct the jury that the said defendant owed to plaintiff the

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