Modlin v. C. L. Jones & Company
| Decision Date | 11 June 1909 |
| Docket Number | 15,719 |
| Citation | 121 N.W. 984,84 Neb. 551 |
| Parties | ARTHUR J. MODLIN, APPELLEE, v. C. L. JONES & COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: ED L. ADAMS, JUDGE. Affirmed.
AFFIRMED.
Tibbets Morey & Fuller, for appellants.
Samuel Griffin and J. W. James, contra.
This action was for damages resulting from personal injuries sustained by plaintiff while in the employ of defendants. There was a verdict and judgment in favor of plaintiff, and from which defendants appeal.
Plaintiff was an employee of defendants, and his duties at the time of the accident were to assist another employee, by the name of Dean, in conveying wagons and other farm implements from the first to the third floor of defendant's business house by means of an elevator. The day on which the accident occurred was the first and only day plaintiff labored for defendants. At the particular time of the accident plaintiff was assisting in taking side-boards of wagon-boxes, or wagon-beds, to the third floor, using the elevator for that purpose. The boards were stood on end leaning diagonally upon and against the bail of the elevator, and projecting above between two and one-half and three feet. Dean had charge of the elevator; plaintiff's sole duty being to assist in removing the material to and from it, except that it is claimed that plaintiff was directed to notify Dean when the bottom or platform of the elevator came within two or three feet of the third floor, so that the elevator might be stopped in its upward movement, and the boards be the more easily removed and stored away. There was some evidence that plaintiff did give such notice on trips made before the accident occurred, but not on the last one. Plaintiff testified, in substance, that, as they approached the point at which the elevator was to be stopped, he saw that Dean was trying to stop the car, and that the notice was not necessary. As the car approached the top of the elevator shaft, it broke loose and fell a distance of about 60 feet, carrying Dean and plaintiff with it, and plaintiff was injured. There is no dispute as to the occurrence of the accident, nor as to the extent of plaintiff's injuries. That he was seriously and permanently injured is clearly shown by the evidence, and not contradicted by defendants. He was about 26 years of age when hurt, and was a healthy, robust young man, depending upon his manual labor for a livelihood. His injuries have made him a cripple and an invalid for life, and render him incapable of ever engaging in his usual avocations. This is practically conceded, but it is contended that the injury was an accident against which ordinary prudence and care on the part of defendants could not guard, and that it was in no way caused or produced by any want of care or by negligence on their part; that the elevator was properly and well made and constructed; and that defendants were in no sense liable to plaintiff for the unfortunate accident, and should not be held therefor.
It is insisted by defendants that upon the trial plaintiff was allowed to introduce evidence upon facts not within the issues made by the pleadings, and that the verdict of the jury is not sustained by sufficient evidence. Defendants contend that the petition does not contain sufficient averments to charge them with negligence, or to render them liable for the injury, and that the evidence of plaintiff that the elevator was not supplied with certain specific appliances was not within the issues made by the pleadings, and the admission thereof was prejudicially erroneous.
In order to an understanding of the questions presented, it is necessary that the substance of the pleadings upon the points of contention be stated. After the formal averments as to the employment of plaintiff by defendants, the character of the labor performed, the ownership of the business and property by defendants, that the latter's business, that of wholesale and retail dealers in hardware and implements, was carried on in a three-story building, it is alleged that at the time of the accident the defendants "owned and operated in the back part of said building an elevator (commonly called a freight elevator), used in carrying machinery, wagons, carriages, persons, etc., to and from the different floors of said building; that said elevator was run by a four horse-power motor, and that the movements of said elevator were controlled by the application of switches and brakes, the same being used to stop and control the speed of said elevator; that said elevator was also equipped with what was supposed to be an automatic clutch, and supposed to work in case said elevator should break loose, by said clutch dropping into the sides or uprights of said elevator, and thereby stopping the same"; that on the 5th day of June, 1906, plaintiff entered into the employment of defendants, and was to assist one W. H. Dean, also an employee, and who operated and handled the elevator, to load the same and transfer some machinery and wagons by means of said elevator to the upper story or floor of said building and there unload the same; that, while in the performance of said duties, it was customary and necessary for plaintiff to get upon the platform of the elevator and be carried to the floor of the building where the machinery and wagons were being stored; that plaintiff was directed to work under the control and direction of Dean; that about the hour of 4 o'clock of said day, and while Dean was carrying and conveying some sideboards to wagon-beds to the upper story of the building, and without any fault of plaintiff and while in the exercise of due care on his part, plaintiff was carried to the top of said shaft by said elevator, where the same gave way, precipitating said elevator upon which plaintiff was standing to the basement of said building, a distance of about 60 feet, thereby injuring, bruising, mangling and permanently injuring him; that, as a direct result from said injuries, "plaintiff has been for about 50 days and still is bedridden; that during said time he has suffered intense pain and anguish; that he has had surgical operations, and has been continually since said injuries and still is under treatment"; that he has had to have a nurse at all times since said injuries, and has been totally deprived of the fruits of his labors during said time, and as he believes will always be. The petition continues as follows: "Plaintiff further says that his said injuries were wholly due to the wrongful, careless and negligent acts and omissions of the said defendants, and defendants were negligent in this, to wit, that said elevator has been in use a great many years, and poorly and improperly constructed, and is made out of poor and defective lumber, so that the same was continually getting out of order; that said elevator and machinery and appliances became old, worn, and defective and out of repair, and that by reason thereof the same was continually getting out of order, and that the said defendants allowed and caused the same to be cobbled by nonexperts, all of which was unknown to said plaintiff, but which were, or by the exercise of reasonable care might have been, known to said defendants in time to have repaired the same and prevented said injuries; and that, by reason of said defective elevator machinery and appliances as aforesaid, said elevator became uncontrollable in its ascent, and failed to respond to the stops and brakes applied thereto, or used or attached to said elevator for safety in the case of any accident of this character, and thereby caused the injury mentioned; that the method employed in carrying and conveying said sideboards to the top of said building was the method usually and customarily employed in performing the same kind of work upon said elevator, and that plaintiff was acting under the express direction of the said W. H. Dean in occupying the position that he did occupy on said elevator, and the one necessarily and customarily assumed by said employee in the performance of said work, all of which were well known to said defendants."
Defendants answered, admitting that they were partners and engaged in business in the building as set forth, the existence and use of the elevator as alleged, "but not for the purposes of carrying persons"; that the elevator was run by a motor and controlled by the application of switches and brakes used to stop and control it, and that it was equipped with an automatic clutch; that plaintiff entered the employ of defendants at the time alleged, and was with W. H. Dean, who was in the employ of defendants, and engaged in the services as alleged, but denying that it was necessary for plaintiff to ride on the platform of said elevator; admitting that the elevator fell, but denying that it fell 60 feet, or that plaintiff "was required to act under the express directions of the said W. H. Dean, but allege that plaintiff and said Dean were fellow servants," and denying each and every allegation of the petition not admitted, qualified or denied. The affirmative allegations are as follows ...
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