Mitchell v. Marker

• Decision Date: 08 May 1894
• Docket Number: 144.
• Citation: 62 F. 139
• Parties: MITCHELL v. MARKER.
• Court: U.S. Court of Appeals — Sixth Circuit

62 F. 139

MITCHELL v. MARKER.

No. 144.

United States Court of Appeals, Sixth Circuit.

May 8, 1894

C. D Robertson and Charles T. Greve, for plaintiff in error.

W. H Jackson and Theo. Hallam, for defendant in error.

Before LURTON, Circuit Judge, and RICKS, District Judge.

LURTON Circuit Judge.

This was an action for personal injuries sustained by appellee while being carried in a passenger elevator in an office building in the city of Cincinnati, Ohio, owned by the appellant. There was a jury, and a verdict for the appellee. The bill of exceptions is very meager, and was prepared chiefly with a view of presenting certain questions of law arising upon the charge of the court. There is, however, one error assigned upon the ruling as to the admission of evidence. To understand that assignment, and its bearing upon the other assignments which relate to the charge, we set out so much of the bill of exceptions as relates to the evidence submitted. It is as follows:

'The plaintiff, to maintain the issue on his part, offered testimony tending to prove the allegations of the petition to wit, to prove that the servant of the defendant, while in the line of his employment, for hire, operating a passenger was negligent in such a degree and manner as to injure the plaintiff, who was lawfully entering said elevator; and, in the course of said testimony for plaintiff, counsel for plaintiff asked the following question, which was objected to by counsel for defendant, but said objection was overruled by the court, to which exception was then and there taken by counsel for defendant, and the question was answered as herein set forth, to wit: 'Q. You say that you frequently spoke to this man about the rate of speed at which he was running the elevator? A. Yes, sir; time and again' (the man referred to being the man whose alleged negligence in operating said elevator at the time of the accident is the cause of complaint herein). That thereupon plaintiff rested, and thereupon defendant offered testimony tending to contradict the evidence of plaintiff, and to prove the allegations of the answer, to wit, that there was no negligence on the part of the defendant, causing said accident, and thereupon defendant rested; and thereupon plaintiff offered evidence tending to rebut the evidence of the defendant; and this was all the evidence offered by either party to the cause.'

The first error assigned is as follows:

'(1) The court erred in allowing the asking of the following question of plaintiff: 'You say that you frequently spoke to this man about the rate of speed at which he was running the elevator? (the man referred to being the elevator man, whose alleged negligence in operating the elevator is the cause of complaint herein), -- and in allowing said question to be answered, as follows, to wit: 'Yes, sir; time and again.' The counsel for the defendant then and there excepting.'

This assignment is bad. The ground of objection was not stated in the court below. The exception was a general one. The ground now assigned is that 'the question was an improper one, as it tended to establish a habit of negligence on the part of defendant's agent, while the point at issue in this case was not the negligence of that servant at the time of the accident. ' What was said about the speed of the elevator man is not shown. We are left to speculate and conjecture as to whether it was a warning that his speed was dangerous, or a commendation as to his regulation of the speed, or a complaint that his speed was too slow. The cases are numerous which hold that, to avail on writ of error, an objection to evidence must be specific, and distinctly indicate the grounds upon which the objection is made. Noonan v. Mining Co., 121 U.S. 400, 7 Sup.Ct. 911; Patrick v. Graham, 132 U.S. 627, 10 Sup.Ct. 194. Aside from this, it is impossible for this court to assume that the court was in error in excluding the testimony now complained of; for its character is not sufficiently evident, and its bearing upon the issues by no means plain, in view of the meagerness of the bill of exceptions.

The second error is that the court erred in charging the jury as follows:

'It follows that reasonable care, under those circumstances, is a high degree of care,-- the highest degree of care consistent with the possibility of injury.'

This sentence is the last of a paragraph concerning the degree of care required in the operation of an elevator. That paragraph is as follows:

'Mr. Marker seeks to recover damages from Mr. Mitchell, on the ground that he suffered an injury because of Mitchell's negligence. Mitchell is the owner of a building on Fourth street, in which there is an elevator. The elevator is put in there for the purpose of accommodating those who wish to go to offices of Mitchell's tenants; and Mitchell owes a duty, therefore, to those who take that elevator for that lawful purpose, to see that he uses every reasonable means that carriage on the elevator shall not injure those who use it. Now, every reasonable means are those means which a man of ordinary, careful prudence would use under the circumstances. When a man steps upon an elevator of this character, he places himself under the control of another; and it follows that reasonable care, under those circumstances, is a high degree of care,-- the highest degree of care consistent with the possibility of injury.'

Particular objection is made to the expression, 'consistent with the possibility of injury. ' Appellant's counsel argue that the jury were thereby given to understand that the owner of an elevator was 'practically an insurer;' that 'consistent with the possibility of injury' 'means just allowing for such a possibility. ' This is a strained and unnatural interpretation. The sentence must be read with its context, and in the light of the particular action being tried. The expression, 'consistent with the possibility of injury,' is not the happiest which might have been chosen. It is plain, however, that the court was not misunderstood, when we consider the subject-matter of the suit, the dangers incident to vertical carriage, the helplessness of a passenger so carried, and the serious consequences to ensue from even slight negligence. The obvious meaning of the court, when the objectionable sentence is read in the light of the particular case on trial, and in connection with the context, was, that reasonable care, under such circumstances, would be a high degree of care, the highest degree of care being only such as would be commensurate with, or proportionate to, the possibility of injury to one so entirely dependent upon the caution and skill of another, and the soundness of the machinery used for his transportation. To say to a jury that the law requires that the degree of care to be exercised must be such as is 'consistent with the possibility of injury' is only to say that the care must be commensurate with, or in proportion to, the possibility of injury presented by the particular...