McCall v. Otis Elevator Co.

• Decision Date: 05 August 1963
• Citation: 219 Cal.App.2d 22,33 Cal.Rptr. 44
• Court: California Court of Appeals Court of Appeals
• Parties: W. E. McCALL, Plaintiff and Appellant, v. OTIS ELEVATOR COMPANY et al., Defendants and Respondents. Civ. 180.

Page 44

33 Cal.Rptr. 44

219 Cal.App.2d 22

W. E. McCALL, Plaintiff and Appellant, v. OTIS ELEVATOR COMPANY et al., Defendants and Respondents.

Civ. 180.

District Court of Appeal, Fifth District, California.

Aug. 5, 1963.

Rehearing Denied Sept. 3, 1963.

Hearing Denied Oct. 1, 1963.

Kane, Canelo & Mash, A. B. Canelo, Merced, Cyril Viadro and Guernsey Carson, San Francisco, for appellant.

McCormick, Barstow, Sheppard, Coyle & Best, Fresno, by William B. Boone, Santa Rosa, for respondent Harris Const. Co.

No appearance for respondent Otis Elevator Co.

CONLEY, Presiding Justice.

The plaintiff, W. E. McCall, was seriously injured when he fell down a shaft for an elevator installed by Otis Elevator Company in a hospital annex being constructed by Harris Construction Company. At the end of a five-day trial the court granted defendants' motion for a nonsuit. The plaintiff was denied a new trial, and an appeal was filed as to the entire judgment for both defendants. However, in his briefs the plaintiff directed the appeal against Harris Construction Company only, and says nothing against the judgment in favor of the Otis Elevator Company; affirmance as to the latter will necessarily follow.

As is said in Gordon H. Ball, Inc. v. Parreira, 214 Cal.App.2d 697, 29 Cal.Rptr. 679, 682:

'The propriety of the decision of the trial court must be tested by the stringent rules relating to nonsuit.

'The general rule governing nonsuits is that a motion therefor presents a pure question of law, and may be granted only when disregarding all conflicting evidence and accepting plaintiff's evidence at its full value, herein indulging in plaintiff's favor every legitimate inference which may be drawn from the evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in plaintiff's favor, if such a verdict were given.' (Carey v. City of Oakland, 44 Cal.App.2d 503, 509, 112 P.2d 714, 717.)

'In passing on a motion for nonsuit the trial court must assume for the purpose of deciding the question that every item of evidence which favors the plaintiff and which is not inherently improbable is true, and this requirement extends to every inference which is fairly deducible from the evidence and every presumption favoring the plaintiff.

'(See also Downey v. Martin Aircraft Service [Inc.], 96 Cal.App.2d 94, 97, 214 P.2d 581; 16 Cal.Jur.2d, Dismissal, Discontinuance, and Nonsuit, § 45 et seq., p. 208 et seq.)'

On an appeal from a judgment of nonsuit the usual rules establishing the technique for the examination of the record and the decision of the case are vitally changed. In the normal appeal in a completely tried case, every intendment is in favor of the judgment, and the inquiry made by the appellate court is normally restricted to the question whether there is any substantial evidence to support the verdict or the findings of the court below. But when the appeal is from a judgment of nonsuit, the appellate court inquires, rather whether there is substantial evidence in the record which, if believed by the finder of fact, would justify a judgment in favor of the plaintiff, and if the answer to this inquiry is affirmative, the judgment of nonsuit must be reversed. The rationale of this change of rule is obvious. It is the intention of the law that the jury, or in the absence of a jury, the court, as finder of fact, is entitled to pass upon the whole record, except in those relatively rare cases where, as a matter of law, the plaintiff has not made out a case and would not be entitled to a judgment in his favor.

Defendant Harris Construction Company contracted with the Sisters of Mercy Hospital in Merced to construct a new annex on 28th Street, next to the old hospital, which fronted on M Street. Cyrk Stiles, job superintendent for the Harris Construction Company, was in charge of the work. Defendant Otis Elevator Company had the subcontract for the elevators; one shaft was bricked up; one elevator was in operation on February 19, 1960; the first floor corridor was covered with asphalt tile and was lighted. The inside of the shaft was gray concrete. The distance between floors is 12 feet, with a five-foot pit below the basement level. There was no light in the bottom of the elevator pit, and no light in the elevator shaft except the small amount that 'leaked' around the inside of the elevator itself from the floor above.

Charles Boyles, Otis' mechanic, installed the elevator; as is customary, when it became operable, though not finished, the subcontractor permitted the general contractor to use it as a construction elevator. Harris Construction Company, through Stiles, signed a form, 'Temporary Acceptance' agreement, which required Harris to supply an operator for the elevator; this was not done. Boyles later returned to install walls, ceiling, floors, and fixtures in the elevator, leaving November 1959, planning to return February 28, 1960, when the third floor work would start.

Otis Elevator Company had blocked open the doors attached to the car so that they could not be used. The 'hoist way' doors, fastened to the building, not the car, will be called 'elevator doors'; at that time there were five; the first and second floors had doors at either end of the shaft; at basement level there was only one door. All doors were designed to close by themselves because of a spring mechanism, and the doors locked by means of a dagger traveling between two rollers and catching on a keeper. When not held open, the doors automatically closed and locked so long as the closures were not fastened back or the rollers tied off. If the locking mechanism was disconnected, by tying the rollers and preventing the dagger from catching the keeper, and if the closure mechanism was operating, a door almost fully closed but did not lock; it remained open a crack and could be further opened by inserting one's fingers and sliding the door back; this was the situation as it existed on the day of plaintiff's accident.

The call buttons were not in service. The elevator could be brought from one floor to another only by operating it from within the car; if a door locked, it was impossible to open it from the outside except the basement door where there was a 'key.' If a door slammed shut, Stiles would have to go to the top, 'shinny' down the greasy cable and into the car through a trap door.

Before leaving the job, Boyles told Stiles to control the door at the desired floor by inserting a stick about 42 inches long, an inch wide and a half-inch thick in the track along the floor, which would hold the door open. The stick was to be kept in the car. If the stick were removed and the door allowed to close, it would lock and could not be opened from the outside.

When Boyles left in November 1959 the elevator was operating, and the doors had the spring tension against them which caused the doors to lock in accordance with their normal design. The elevator was in constant use, and Stiles 'tied the door off' for convenience. On February 17, 1960, two superintendents of the Otis Elevator Company inspected the premises and found that the doors were tied off. They promptly removed the springs from behind the enclosures and untied the rollers on all floors to eliminate the hazardous condition. They expressly told Stiles that such tampering by him had created a dangerous condition.

After the two Otis Elevator Company employees left, Stiles took it upon himself, contrary to their express warning, again to tie off the door on the first floor, the one through which plaintiff McCall later fell. No warning signs were posted, and no barricades were erected at the door during its daily use.

Plaintiff, 52 years and 11 months old at the time of the fall, was in good health and was working for the Sisters of Mercy Hospital as a custodian. Such work occasionally required him to go to the annex. His employers had the right, as owners of the property, and also by express agreement with Harris Construction Company, to use parts of the annex in the course of construction for the storage of property for future use in the hospital operations. On one prior occasion plaintiff McCall had helped move T. V. sets into the annex; this required several trips up and down in the elevator; Mr. Hinkle, maintenance engineer for the new annex, operated the elevator on that occasion, and plaintiff did not run the mechanism of the elevator. On another previous occasion plaintiff helped move X-ray equipment into the new annex; a man named Adams then helped plaintiff and a worker at the new annex ran the elevator; again, plaintiff McCall did not manipulate any of the mechanical parts.

On February 19, 1960, Sister Joseph told plaintiff to take a desk over to the new building for use by Mr. Hinkle in his office in the basement of the annex. He moved the desk outside of the old building on a truck. From this point, plaintiff remembers little or nothing at all, except that he remembers falling through space, and recalls hearing a fellow employee, Herman Barker, call to him at the bottom of the elevator pit after his fall. According to the testimony of Stiles, plaintiff and Sister Joseph were moving the desk when Stiles told them to take it down the chute, because new tile had been laid in the corridor, and he feared the heavy load would cause the tile to 'pop loose.' Mr. Barker, also employed by the Sisters of Mercy Hospital, and Hinkle, came to help plaintiff; they headed for the chute, which was an outside ramp. Hinkle correctly pointed out that the desk was too large to go down the chute, and suggested the use of the elevator. The group of workmen proceeded into the hail leading to the elevator. Hinkle walked ahead; Barker brought the dolley with the desk on it, and plaintiff walked somewhere behind the other two. They passed Stiles, who was eating his lunch in a little alcove off the hall; Stiles, who was facting them, said nothing as they...