Mcintyre v. Monarch Elevator &mach. Co

• Decision Date: 16 June 1949
• Docket Number: No. 667.,667.
• Citation: 54 S.E.2d 45,230 N.C. 539
• Court: North Carolina Supreme Court
• Parties: McINTYRE. v. MONARCH ELEVATOR &MACHINE CO. et al.

230 N.C. 539

54 S.E.2d 45

McINTYRE.

v.MONARCH ELEVATOR &MACHINE CO. et al.

No. 667.

Supreme Court of North Carolina.

June 16, 1949.

Appeal from Superior Court, Guilford County; Paul Edmundson, Special Judge.

Action by Vallie Bumgarner McIntyre against the Monarch Elevator & Machine Company to recover for injuries sustained by plaintiff in fall into elevator shaft, wherein the original defendant filed a cross-action against the Gilmore Clinic, Inc. From a judgment dismissing the action and cross-action, the plaintiff and the original defendant appeal.

Judgment reversed.

This was an action to recover damages for a personal injury alleged to have been caused by the negligence of defendant Monarch Elevator and Machine Company, hereinafter called the Elevator Company.

It was alleged that the Elevator Company while installing certain equipment for use in a passenger elevator in the building of Gilmore Clinic, Inc., had moved the elevator to the second floor and negligently left open and unguarded the door of the elevator shaft on the first floor, and that plaintiff who had entered the building for the purpose of receiving medical attention fell into the opening and was injured. The defendant Elevator Company denied negligence on its part, pleaded contributory negligence on the part of plaintiff, and further on its motion had Gilmore Clinic, Inc., made party defendant and filed cross-action against the latter for contribution in the event plaintiff should recover against the Elevator Company. Gilmore Clinic, Inc., answered denying liability to its co-defendant or the plaintiff.

At the close of plaintiff's evidence the motion of defendant Elevator Company for judgment of nonsuit was allowed, and judgment was entered dismissing plaintiff's action, and also dismissing the Elevator Company's cross-action against Gilmore Clinic, Inc.

Plaintiff excepted and appealed.

Defendant Elevator Company appealed from so much of the judgment as dismissed its cross-action against its co-defendant.

King & King, Greensboro, for plaintiff appellant.

Smith, Wharton, Sapp & Moore, Greensboro, for defendant Gilmore Clinic, Inc.

R. M. Robinson, Greensboro, for defendant Monarch Elevator and Machine Co, Inc.

Plaintiff's Appeal.

DEVIN, Justice.

The judgment of involuntary nonsuit entered by the court below raises the question of the sufficiency of the plaintiff's evidence to carry the case to the jury.

The evidence offered tended to show that the circumstances of the plaintiff's injury were substantially these: The defendant Elevator Company was engaged in installing certain electrical equipment for automatic operation of the elevator in the building of defendant Gilmore Clinic, Inc., in Greensboro. The elevator had previously been installed for manual operation and had been so operated for several months. The work of adding the additional wiring was being done by the Elevator Company under contract with Gilmore Clinic, Inc., for the use of the members of the medical profession associated with Gilmore Clinic and having offices in the building and for the convenience of their patients who came there for medical attention and service. On the first floor the doors to the elevator shaft were arranged to slide back on each side leaving a space 4 feet wide and measuring 7 feet from top to bottom, affording entrance to the elevator cage when in use. The elevator was located at the rear end of a corridor 6 feet wide and was 28 feet from the front door. On the occasion alleged, November 25, 1947, about 4 p. m, the plaintiff, 24 years old, an expectant mother, entered the building for the purpose of being treated by Dr. Wood whose office was onthe second floor. She had by direction of the physician visited this office twelve times. On those occasions the elevator had been operated by an employee of Gilmore Clinic, Inc. Plaintiff's vision was impaired but she could see large objects at some distance. Plaintiff testified she entered the front door and was walking down the lighted corridor toward the elevator when "without any warning whatsoever I completely blacked out and knew nothing until after being transferred to Wesley Long Hospital * * * I came to." She was picked up unconscious on the bottom of the elevator shaft, 4¹/₂ feet down. There was evidence tending to show that the employees of the Elevator Company, in order to install the equipment had opened the outer doors of the shaft on the first floor and raised the cage nearly to the second floor, so that the workman in charge could walk up the stairs and get on top of the cage to do the work on which he was engaged. This placed the bottom of the cage about 18 inches below the top of the opening, leaving 5¹/₂ feet clearance. The sliding or hatchway doors of the shaft were left open. One of defendant's employees had gone through this opening down into the pit, which was 6 feet square and unlighted, and was on a stepladder at the time plaintiff fell. The defendant Elevator Company's employee in charge of the work was on top of the cage When his assistant called him and he immediately came down and found plaintiff lying on the floor of the pit unconscious. There was no barrier or protection for the open elevator shaft. The manager of Gilmore Clinic, Inc., had pasted a narrow typewritten slip over the push button at the elevator door "elevator out of order, use stairway." All the work done before by defendant had been done with shaft door closed. At times the Elevator Company's employees at request of the manager of Gilmore Clinic, Inc., had operated the elevator for the convenience of patrons.

The doors of the elevator shaft were left open by defendant Elevator Company's employer, but the width of the open space does not clearly appear. The only witness as to this was W. W. Dance, defendant Elevator Company's employee in charge of this work. He was offered by plaintiff. He testified "The elevator doors were open. The hatchway doors were open. The elevator doors were open when I started up" to the second floor. On cross-examination he said, "the hatchway doors were partially open. I would say there was about 18 inches space between them--The elevator doors were open wide enough for Mr. Dillenbeck (his assistant in the pit) to come through * * *. If he was to ease through he could possibly get through without disturbing the door. If he was to brush through there was a possibility he could push them wherever he wanted to." The man in the pit had only been down there a "couple of minutes" when the plaintiff fell. This man was not available as a witness at the trial.

There was no evidence as to the manner or cause of plaintiff's fall other than her statement that as she walked down the corridor she blacked out or fainted and the testimony of Mr Dance that she was found unconscious at the bottom of the open shaft.

The plaintiff sustained serious injury from her fall, but the baby arrived in due time unharmed.

The evidence offered by plaintiff, considered in the light most favorable for her, tended to show that the defendant Elevator Company's employees, while working on the elevator cage in a building in which the elevator was in use by occupants and their invitees, left the door to the elevator shaft open without barrier or guard, and with only a narrow typewritten slip over the push button "elevator out of order." Whether under the circumstances this was a sufficient warning, and whether the defendant failed to exercise due care in the performance of a duty incumbent upon it, present questions, we think, for the determination of the jury. Drumwright v. North Carolina Theatres, Inc., 228 N.C. 325, 45 S.E.2d 379; Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64; Williams v. Charles Stores Co, Inc., 209 N.C. 591, 184 S.E. 496; Hunt v. Meyers Co, 201 N.C. 636, 161 S.E. 74.

In Jones v. Bland, 182 N.C. 70, 108 S.E. 344, 16 A.L.R. 1383, the plaintiff in a hotel lobby approached the elevator for the purpose of using it. The elevator door wasopen but the carriage had been moved to an upper story. Plaintiff fell in the open shaft and was injured. There was also the fact that due to the darkness of the afternoon and color of the paint ordinary observation did not disclose the opening. This Court held that if these facts were accepted a primary case of negligence was made out carrying the case to the jury. Stewart v. Van Deventer Carpet Co., 138 N.C. 60, 50 S.E. 562; Womble v. Merchants' Grocery Co., 135 N.C. 474, 47 S.E. 493; 18 Am.Jur. 546; 45 C.J. 867, 870. In Rosenbaum v. Shoffner, 98 Tenn. 624, 40 S.W. 1086, recovery for injury sustained by one who stumbled and fell into an open elevator shaft was affirmed. One who has taken over control of an elevator, in use in a building, for the purpose of repair is chargeable with the duty of exercising reasonable care for the safety of those who rightfully use or attempt to use it. Otis Elevator Co. v. Wilson, 147 Ky. 676, 145 S.W. 591; Fox v. Dallas Hotel Co, 111

Tex. 461, 240 S.W. 517.

Did the Elevator Company's conduct in this respect constitute negligence, and, if so, did plaintiff's injury proximately result therefrom? Proximate cause of an injury is generally defined as the cause which produced the injurious result complained of in continuous sequence without any new or intervening cause and without which it would not have occurred, and one from which one of ordinary prudence would have foreseen that some such result was likely under the circumstances as they were known or ought to have been known at the time. Ramsbottom v. Atlantic Coast Line R. Co, 138 N.C. 38, 50 S.E. 448; Paul v. Atlantic Coast Line R. Co, 170 N.C. 230, 87 S.E. 66, L.R.A.1916B, 1079; Whitt v. Rand, 187 N.C. 805, 123 S.E. 84; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Luttrell v. Carolina Mineral Co, 220 N.C. 782, 18 S.E.2d 412; Lee v. Carolina Upholstery Co, 227 N.C. 88, 40 S.E.2d 688. One of the element's of proximate cause essential in the establishment of actionable negligence is...