Murphy's Hotel Inc v. Cuddy's Adm'r

• Citation: 97 S.E. 794
• Court: Virginia Supreme Court
• Decision Date: 16 January 1919
• Parties: MURPHY'S HOTEL, Inc. v. CUDDY'S ADM'R.

97 S.E. 794

MURPHY'S HOTEL, Inc.

v.CUDDY'S ADM'R.

Supreme Court of Appeals of Virginia.

Jan. 16, 1919.

Error to Circuit Court of City of Richmond.

Action by Cuddy's administrator against Murphy's Hotel, Incorporated. To review judgment for plaintiff, defendant brings error. Affirmed.

The following instructions were given on the trial in the circuit court:

No. 1. The court instructs the jury that it was the duty of the defendant in carrying the plaintiff's intestate upon its elevator to use the highest degree of care for his safety known to human prudence and foresight, and is liable for the slightest negligence against which human care and foresight might have guarded. This degree of care is required and applies not only to the manner in which the elevator was being run and controlled by the operator, but also to the machinery, appliances and equipment of said elevator, and the manner in which same were constructed and maintained; and if you believe from the evidence that the defendant failed to exercise such care in any of these particulars, and that such failure proximately caused the death of the plaintiff's intestate while in the exercise of ordinary care on his part, then your verdict must be for the plaintiff.

No. 2. The court further instructs the jury that Murphy's Hotel Company is not an insurer of passengers using elevators, and owed to the plaintiff's intestate the exercise of the highest degree of practical care to provide safe equipment and operation; and if you believe from the evidence that the defendant in this case exercised such care in the equipment and operation of the elevator in question, they will find for the defendant.

No. 3. The court instructs the jury that if they believe the plaintiff's intestate was a passenger on the elevator, that his injury was caused by apparatus wholly under the control of the defendant and furnished and applied by it, or by some defect in machinery or appliances, and the accident was of such a character as does not ordinarily occur if due care is used on the part of the owner of the elevator or its employes in charge thereof, then there is a prima facie presumption of law that his death was caused by the negligence of the defendant, which presumption holds until the defendant has introduced evidence satisfactory to the jury tending to show that the defendant and its employs operating the elevator used the highest degree of care known to human prudence and foresight in the construction, repair and maintenance of its elevator and appliances, and in the running and management of said elevator at the time of the injury.

No. 4. The court instructs the jury that they must disregard all testimony given by Watts relating to instructions given or not given by him to the elevator boys under his control and further you are instructed that the mere retention in service of a careless employe does not give rise to a cause of action against the employer, but there must be evidence of some intervening negligence which is the proximate cause of the injury, and the mere employment or retention of an unfit servant cannot be the proximate cause of an accident. There must result some specific act of negligence or incompetency before any liability can attach.

No. 5. You are further instructed that it is not negligence to fail to take precautionary measures to prevent an injury which if taken would have prevented it, when the injury could not have reasonably been anticipated, and would not have happened, but for the occurrence of exceptional circumstances.

No. 6. You are further instructed that if you believe from the evidence that the plaintiff's intestate was injured in the elevator, and that at the time of the accident the operator was called upon to act, an emergency existed, and that the operator could have used either of two or more methods of stopping the elevator after the emergency arose, then the defendant company is not liable for the actions of the operator in exercising the right of selection between these methods, either of which was shown to be reasonably safe; and you are further instructed that if you believe from the evidence that the operator of the elevator was called on by an emergency created by the plaintiffs intestate, and was in fact attempting to prevent injury to the plaintiffs intestate, then you are instructed that the operator is not held to the same degree of care as he would have been under ordinary circumstances.

No. 7. The court instructs the jury that the testimony of Detectives Kellam and Lumpkincovering alleged inconsistent statement of witness L. D. Paige made at the time or shortly after the occurrence of the accident has no probative value, and can be considered by them only for the purpose of discrediting or contradicting the testimony of the said L. D. Paige.

No. 8. The court instructs the jury that you cannot find for the plaintiff under either the second or fourth counts of said declaration herein.

No. 9. The court instructs the jury that, should they find for the plaintiff, then in fixing the damages they should take into consideration all of the circumstances surrounding the case, so far as they are shown in the evidence, such as the circumstances attending the injury, the mental and physical anguish of the deceased, the business habits and earning capacity of the deceased, as affecting his capacity to earn a livelihood for his family, the loss of the decedent's care and attention and society to his family, together with such sum as they may deem fair and just by way of solace and comfort to them for the sorrow, suffering, and mental anguish occasioned by his death, not to exceed the sum of $10,000, the amount sued for.

The court further tells the jury that in such event they should further find the proportions in which the amount of such recovery should be divided between the widow and the infant child. No. 10. The court instructs the jury that the burden is upon the plaintiff to prove his case by a preponderance of the evidence, and this burden never shifts; and if you believe from the evidence in this case that the plaintiff has failed to thus prove his case, you should find for the defendant company.

C. V. Meredith, Jas. H. Price, and Gunn & Mathews, all of Richmond, for plaintiff in error.

Montague & Lamb, of Richmond, and F. B. Hutton, of Abingdon, for defendant in error.

WHITTLE, P. The administrator of Clarence P. Cuddy brought this action against plaintiff in error, Murphy's Hotel, Incorporated, to recover damages for the death of his intestate, alleged to have been occasioned by the wrongful act of the defendant.

The jury returned a verdict for the plaintiff for $10,000, upon which the judgment under review was rendered.

Cuddy was a resident of Abingdon, Washington county, Va., and was deputy sheriff and jailer of that county; he was 31 years of age, and a splendid specimen of physical manhood. He came to Richmond on official business, and, having registered as a guest at Murphy's Hotel late in the night of his arrival, October 24, 1916, was assigned to room 375, on the third floor. He spent the following day doing some shopping, and on that night attended a performance at one of the theaters, where he saw a friend and fellow townsman, McConnell, who was likewise a guest of Murphy's Hotel. Later in the night he and McConnell again met, in the hotel lobby, where they engaged in conversation. McConnell was a merchant in Abingdon, and had sold Cuddy the shoes he was then wearing. Cuddy complained that one of the shoes hurt his foot, and McConnell remarked that it might be the lining, and suggested that he would go up to Cuddy's room and see if he could relieve the trouble. Accordingly they went to room 375, and, finding nothing wrong with the lining, McConnell told Cuddy that he had two pairs of shoes with him, and if he would go down to his room, No. 175, on the first bedroom floor, two floors below Cuddy's room, he would let him have a pair of the shoes. The shoes proved satisfactory, and the friends continued their conversation, in part on business, until between 2 and 3 o'clock in the morning, when Cuddy left McConnell's room and went to the elevator door in the hall, with the view of going up to his own room (but according to the testimony of the elevator operator he had pressed the down button). In response to the call the elevator came to that floor. Paige, the night operator, a colored man 23 years of age, had been in the employment of the hotel since the middle of the previous September, but had only been operating the elevator for about 2 weeks. He was the only surviving eyewitness to the occurrence, and in the opinion of the trial court was an adverse witness to plaintiff, and, over the objection of defendant, was permitted to be Introduced by plaintiff as such and examined according to the rules applicable to cross-examination and contradiction in the manner prescribed by Virginia Code, § 3351. Witness gave substantially the following account of the accident:

That in answer to the call he went up to the first floor; that the red, or down signal was lit, so when he opened the door at the first floor, "I said, 'Going down, sir?' The gentleman said, 'Yes'— I closed the door behind him and started the car down. The gentleman gave way in the knees. I had this hand (his left hand) on the lever that operated the elevator. When I saw him give way, I grabbed him with my right hand, and worked the lever with my left hand to stop the car. His foot got down by the floor, the car jumped back and crushed the gentleman's back against the railing across the door, and the handle, to it, and then I said— After the car came to a standstill, I opened the door—pulled the lever back and opened the door to let the gentleman— He fell out in the hall. I opened the door to get him out of the jam. When I opened the door, he fell out on his back and left leg. His foot was under the car (indicating), I think; in fact, I know it, because the...