Monahan v. Equitable Life Ins. Co. of Iowa

• Decision Date: 11 March 1916
• Docket Number: No. 30475.,30475.
• Citation: 156 N.W. 994
• Parties: MONAHAN v. EQUITABLE LIFE INS. CO. OF IOWA.
• Court: Iowa Supreme Court

156 N.W. 994

MONAHAN

v.EQUITABLE LIFE INS. CO. OF IOWA.

No. 30475.^a1

Supreme Court of Iowa.

March 11, 1916.

Appeal from District Court, Polk County; Charles A. Dudley, Judge.

Action at law, to recover damages to the estate of Mary A. Monahan whose death is alleged to have been caused by the negligence of defendant. There was a directed verdict and judgment for defendant, and plaintiff appeals. The material facts are stated in the opinion. Reversed and remanded.Parsons & Mills, of Des Moines, for appellant.

Carr, Carr & Evans, of Des Moines, for appellee.

WEAVER, J.

The petition alleges that defendant is owner and proprietor of a 12 story office building in the city of Des Moines, in which building it maintains a passenger elevator for the carriage of all persons having dealings with the tenants of the offices located upon the upper floors of said building; that on June 21, 1913, the deceased became a passenger in such elevator for the purpose of being taken to the fourth floor of said building, and while being so carried, and while being herself in the exercise of due care, she was by the negligence of the defendant thrown to the floor of the elevator in such manner that she was caught between the floor of the moving cage and the opening in one of the floors, or between the cage and the wall of the shaft, whereby she received injuries, which were instantly fatal. The defendant admits its corporate capacity and the ownership of the building, and denies all other allegations of the petition.

The testimony introduced tends to show that deceased went to the office building to call upon an oculist, who had an office on the fourth floor. She entered the elevator cage on the first or second floor, informing the operator that she desired to get off at the fourth. She was the only passenger, and, according to the story of the operator, she took her stand at or near the back of the cage facing the entrance. In handling the levers controlling the power he stood with his face toward the entrance, looking away from the deceased. While so occupied he heard a sound, and, looking around, saw that deceased had fallen forward, with her head in the door opening, and before he could stop the motion her head was in some way caught and crushed between the floor of the ascending cage and the wall of the elevator shaft. His statement is somewhat confused, owing doubtless to the suddenness of the accident and the resulting mental and nervous shock which he sustained. He first testified that he saw deceased falling, but later says he did not see her fall, and that it was the sound or noise of her fall on the floor which caused him to look. The movement of the cage stopped with the body of the deceased hanging wedged between the sill or bottom of the door opening and the grillwork which inclosed the shaft, from which position it was released as soon as help arrived. This is substantially all which is shown concerning the conduct or movements of deceased and the operator. Concerning the construction of the elevator and shaft in which it operated, it appears that the shaft was at that time inclosed in grillwork, in which there was a door or gate at each floor to permit the entrance and exit of passengers. The cage was of steel, with a floor measurement of about 5 1/2 by 6 feet, and a height of about 8 feet and was inclosed on three sides. There was no door or gate or guard in the doorway of the cage nor a foot guard of any kind on the lower side of the floor openings through which the cage was lifted. In other words, when the cage stopped at any floor which it was intended to serve, the cage opening would be in position with the door in the shaft through which passengers were admitted or discharged without danger of injury; but in lifting the cage through the shaft between the floors there was apparently no guard or protection against injury to a passenger who might fall or stumble or be crowded or elbowed into the door opening against the wall of the shaft or into contact with the projecting edge of a floor through which the cage might be passing. The officers of the defendant testified that the construction and equipment were comparatively new, and that the work was done by well-known experts of high standing; that the elevators were frequently inspected, and kept in good order and repair, and did not jerk suddenly in operation. The machinery was operated by electric power. According to the operator, there were three principal speeds to the movement of the cage with intermediate speeds, and that the cage was moving at second or third speed (he is not certain which) when the accident occurred. He expresses the opinion that when the deceased fell the cage had moved upward from the third floor about 3 feet and if this be true and she fell, as stated, into the doorway she must have been carried up into the narrow space between the cage and the wall of the elevator or to the point where she was brought into contact with the fourth floor which at the landing projected into the shaft several inches to make a continuous passage from the hall to the cage floor. The only alternative conclusion would be that she fell before reaching the third floor, and had been crushed in passing through that opening if such thing were possible. It should be said also that the operator appears to have had considerable experience, and is described by his employers as both capable and careful. The plaintiff offered the testimony of a carpenter and builder, to the effect that he had examined the elevator in defendant's building and several others in buildings of somewhat similar character in the same city. He says that in this building where the floor structure extends through the door or gate at the landing places on the several floors the headers are cut square across, perpendicularly to the plane of the floor, while in other elevators examined by him they are framed with a slant from the projecting edge of the landing downward and back to the wall of the shaft, thus affording, as it is claimed, some degree of protection against danger that a passenger may be caught by the foot or other part of the person between the outer floor or edge of the cage and the projecting edge of the floor of the building through which the cage is being lifted.

The single question presented for our consideration is whether, giving plaintiff the benefit of the most favorable inferences which may fairly be drawn from the testimony, a jury verdict for the recovery of damages could be permitted to stand.

[1] I. This depends: First, upon the nature and extent of the defendant's duty to care for the safety of persons rightfully taking passage in the elevator. Though varying somewhat in the statement of the rule, much the greater weight of authority is to the effect that one who owns a building provided with an elevator or lift for the use of persons generally who have occasion to pass from one floor of such building to another is charged with the same degree of care which the law imposes upon common carriers of passengers, and this is said to be the highest degree of skill and foresight consistent with the efficient use and operation of the means of conveyance. Cubbage v. Youngerman, 155 Iowa, 39, 134 N. W. 1074. The court in Farish v. Reigle, 11 Grat. (Va.) 711, 62 Am. Dec. 666, states the duty of a common carrier of passengers to be--

“to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, for the utmost care and diligence of very cautious persons.”

See, also, to the same effect, Maverick v. Railroad Co., 36 N. Y. 378;Taylor v. Railroad Co., 48 N. H. 313, 2 Am. Rep. 229. Or, as put by Judge Cooley, the requirement is “the most perfect care of prudent and cautious men.” Cooley on Torts (2d Ed.) 768, 769. Indeed the rule as above stated is upheld by such a multitude of authorities, and is so well known to every lawyer, that its mere statement is sufficient without burdening our opinion with cited precedents.

[2][3] II. The burden, of course, is upon plaintiff to sustain, by a preponderance of the evidence, the charge that defendant failed to observe the strict measure of duty imposed upon it by law, and that by reason of such neglect the intestate lost her life. Whether he made a prima facie case in this respect depends, we think, upon the effect to be given to certain rules and principles of the law of evidence, having peculiar application to cases against common carriers of passengers. While there is considerable diversity of expression in the cases, the rule seems to be settled that where a plaintiff is shown to have been a passenger upon a conveyance furnished by a common carrier, and while occupying that relation is injured by the operation or movement of such conveyance, that fact being shown in evidence, there is a presumption of want of care in such carrier which casts upon it the burden of showing itself free therefrom. This rule was approved by us in Dieckmann v. Railroad Co., 145 Iowa, 250, 121 N. W. 676, 31 L. R. A. (N. S.) 338, 139 Am. St. Rep. 420,Larkin v. Railroad Co., 118 Iowa, 652, 92 N. W. 891,Fitch v. Traction Co., 124 Iowa, 668, 100 N. W. 618,Dorn v. Railroad Co., 154 Iowa, 144, 134 N. W. 855 and Pershing v. Railroad Co., 71 Iowa, 566, 32 N. W. 488. As long ago as the time of Lord Mansfield it was held that a plaintiff who was injured while passenger on a stage coach, made a prima facie case by proving his relation as a passenger and the fact of the accident and his own injury. See 2 Camp. 80. In Laing v. Colder, 8 Pa. 479, 49 Am. Dec. 533, we have an early leading case on this subject, which has often been cited and followed. The court there, after stating the general rule as to the high degree of care exacted of carriers of passengers, proceeds to say:

“Nay, the mere happening of an injurious accident raises prima facie a presumption of neglect, and throws upon the carrier the onus of...