McLennon v. Whitney-Steen Co.

• Decision Date: 04 June 1917
• Docket Number: 8581.
• Citation: 167 P. 771,63 Colo. 568
• Court: Colorado Supreme Court
• Parties: McLENNON v. WHITNEY-STEEN CO. et al.

167 P. 771

63 Colo. 568

McLENNON v. WHITNEY-STEEN CO. et al.

No. 8581.

Supreme Court of Colorado, En Banc.

June 4, 1917

Rehearing Denied Oct. 8, 1917.

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by John A. McLennon against the Whitney-Steen Company and others. There was a judgment for defendants, and plaintiff brings error. Affirmed.

John T. Bottom and Milnor E. Gleaves, both of Denver, for plaintiff in error.

Rogers Ellis & Johnson, of Denver (Pierpont Fuller, of Denver, of counsel), for defendant in error Daniels & Fisher Shores Co.

Goudy Twitchell & Burkhardt, H. R. Kaus, and E. P. Steinhauer, all of Denver, for defendants in error Whitney-Steen Company and T. C. Anderson.

GARRIGUES J.

In February, 1911, the Whitney-Steen Company was engaged in erecting a tower for the Daniels & Fisher Stores Company in Denver. An elevator shaft through which a hoist was operated for carrying materials used in the work was constructed from the basement to the twenty-third floor in the tower. The wellholes or openings on the different floors through which the elevator passed were not protected by any fence or barrier, and the cage or elevator was simply a platform.

On the morning of February 7, 1911, McLennon, a carpenter, and Dixon, a fellow workman, were preparing forms for concrete on the eighteenth floor, and later McLennon went to the nineteenth floor to do some work around the hoist shaft where he got down on his knees, and in reaching over to take a measurement leaned his head and part of his body out into the shaft. The floors are only nine feet apart, and the cage was standing directly above him at the twentieth floor. While he was in this position, Anderson, foreman of the bricklayers, got on the elevator to go to the basement, and while descending it struck McLennon on the back of the head, as he was leaning over into the shaft, thereby inflicting serious and permanent injuries.

The acts of negligence alleged in the complaint as causing the injuries are failure to fence around the elevator shaft as required by the Denver city ordinance, and that Anderson, who was riding on the elevator, should have seen plaintiff and avoided the accident.

At the close of plaintiff's evidence, the court nonsuited him upon the grounds that, regardless of the condition of the elevator shaft and the ordinance of the city, he was guilty of contributory negligence in projecting his body out into the elevator shaft, and that the injuries would not have occurred except for such negligent act of plaintiff.

The ordinance provides:

' Hoists and Elevators--Wellholes to be Guarded.--All buildings in course of construction, and in all buildings having elevators intended for freight lifts only, and not constructed, protected and operated as required for passenger elevators, it shall be unlawful to use hoists and elevators for hoisting materials, etc., in any such building or buildings, unless the wellholes or openings for such elevators or hoists, on each and every floor of the building, shall be closed with guard rails composed of boards placed six (6) inches apart, to a height of five (5) feet, with a gate or doorway swinging outward from the elevator, and such other safety or equivalent appliances as shall be necessary for the protection of life and limb.'

The case is brought here to review the judgment of the lower court.

1. The question regarding Anderson's failure to see plaintiff, or to anticipate that he would be in his perilous position, is not difficult. The answer to that contention is that Anderson was on top of the cage and plaintiff out of sight underneath it.

2. Plaintiff, as a basis of his cause of action, relies upon the violation of the city ordinance, which is admitted. This involves the consideration of two questions: First, contributory negligence as a defense; and, second, the limitation, if any, placed upon this defense by the city ordinance, that is, can this defense be relied upon when the negligence of the employer consists merely in the violation of a city ordinance? The simplest and most logical way of disposing of thes questions, is to state three general rules of law applicable to the undisputed facts:

(1) The general rule relating to the doctrine of contributory negligence of employés as applicable to the facts in this case is well stated in counsel's brief, as follows:

'An employé is guilty of contributory negligence, which will defeat his right to recover for injuries sustained in the course of his employment, when such injuries substantially resulted from danger so obvious and threatening that a reasonably prudent man, under similar circumstances, would have avoided that if in his power to do so.

'Or, to state the proposition in another way: To render a master liable for injuries to his servant, the latter must have exercised ordinary and reasonable care, and if the injured party might, by the exercise of ordinary and reasonable care under the circumstances, have avoided the consequence of defendant's negligence, he cannot recover.'

See Behrens v. Railway Co., 5 Colo. 400; Lord v. Pueblo S. & R Co., 12 Colo. 390, 21 P. 148; Jackson v. Crilly, 16 Colo. 103, 26 P. 331; Railway Co. v. Ryan, 17 Colo. 98, 28 P. 79; Last Chance Co. v. Ames, 23 Colo. 167, 47 P. 382; Iowa G. M. Co. v. Diefenthaler, 32 Colo. 391, 76 P. 981; Orphan Belle Co. v. Pinto M. Co., 35 Colo. 564, 85 P. 323; Union C. & C. Co. v. Sundberg, 36 Colo. 8, 85 P. 319; Western Union Co. v. Olsson, 40 Colo. 264, 90 P. 841; Elkton Co. v. Sullivan, 41 Colo. 241, 92 P. 679; Sagers v. Nuckolls, 3 Colo.App. 95, 32 P. 187; Acme Co. v. McIver, 5 Colo.App. 267, 38 P. 596; Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Northern P. R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755; Goodlett v. Louisville Ry., 122 U.S. 391, 7 S.Ct. 1254, 30 L.Ed. 1230; Kane v. Northern Cent. Ry. Co., 128 U.S. 91, 9 S.Ct. 16, 32 L.Ed. 339; Dist. of Columbia v. McElligott, 117 U.S. [63 Colo....