Myers v. Little Church by the Side of the Road

• Decision Date: 27 January 1951
• Docket Number: No. 31364,31364
• Citation: 37 Wn.2d 897,227 P.2d 165
• Parties: MYERS, v. LITTLE CHURCH BY THE SIDE OF THE ROAD.
• Court: Washington Supreme Court

Page 897

37 Wn.2d 897

227 P.2d 165

MYERS, v. LITTLE CHURCH BY THE SIDE OF THE ROAD.

No. 31364.

Supreme Court of Washington, Department 2.

Jan. 27, 1951.

Ervin F. Dailey, Seattle, for appellant.

Lycette, Diamond & Sylvester, Seattle, for respondent.

HAMLEY, Justice.

This action was brought by Albert L. Myers against Little Church By the Side of the Road, to recover damages for injuries sustained while operating an elevator. The jury returned a verdict of three thousand dollars for plaintiff. The trial court thereafter granted defendant's motion for judgment notwithstanding the verdict, and also its motion for a new trial in the event of reversal of the judgment n. o. v. Judgment was entered accordingly, and plaintiff has appealed.

The evidence, when viewed in a light most favorable to appellant, discloses the following facts: Appellant began working as a night clerk at the St. Regis hotel, in Seattle, in March, 1945. His working hours were from 11:00 p. m. until 7:00 a. m., the next day. His duties were to check guests in and out of the hotel, answer the telephone, run the elevator, and attend to room service for the guests. There were eight floors in the hotel and one hundred thirty-one rooms to attend.

The elevator used for guests in the building was of metal, and doors opened into the hall on each floor from the elevator shaft. Early in July, 1945, a folding metal door had been installed on the elevator cage. This folding door, however, was not used by the employees after the first week following its installation. A pencil had been placed in the control box by some person other than appellant, so that the cage door at all times remained in an open position.

The elevator was operated with a hand lever in a control box. When the lever was up, it was in a neutral position. When the lever was moved from neutral to the left, the elevator went down. When the lever was moved from neutral to the right the elevator went up. When the lever was released it was supposed to return to a neutral position.

On August 1, 1945, respondent took over the operation of this hotel, and placed Charles Ray in charge as the new manager. Mr. Ray was at the hotel only in the day-time, and was never there during Myers' shift. The manager did ride on the elevator, however, and was presumably aware of the fact that the folding door on the cage was fastened back and not used.

A night or two before August 8, 1945 (when the accident occurred), the elevator had suddenly stopped while it was being operated by Myers. The evidence does not disclose whether the elevator was traveling up or down at the time, whether it stopped at floor level or between floors, or whether Myers was able to get it going again. Myers testified that the elevator had given similar trouble on one or two previous occasions. There is nothing in the record as to the details regarding these previous difficulties, or whether they occurred before or after respondent took over operation of the hotel on August 1, 1945. Myers testified, however, that he knew of no occasion, prior to the accident, on which the elevator, after stopping in this manner, suddenly started up.

On all of these occasions, Myers, following instructions which he had received, called a specified elevator company and asked the company to send a mechanic to fix the elevator. This company, in addition to answering such service calls, made regular weekly inspections of the elevator. When service calls of this kind were received, the company would send out repairmen within an hour or an hour and a half and make the necessary adjustments. Myers told fellow employees of these difficulties with the elevator, but did not tell the manager. There is nothing in the record indicating that the manager or anyone else on behalf of respondent (except the elevator company) received notice of the difficulties which were being experienced

About five-thirty o'clock on the morning of August 8, 1945, Myers, while on duty at the hotel, received a call from the seventh floor, and started up in the elevator. When the elevator arrived at a point just below the second floor and above the mezzanine floor, it stopped and would not start. Appellant released the hand lever and stepped over to the hall door, which opened from the shaft, in an attempt to leave the elecvator, or to jar it so that he could start it again. As he did this the elevator suddenly started of its own accord. Appellant did not have his hand on the control lever at this time, and could not have had, in the position his foot was then in. Appellant was unable to state what caused the elevator to stop and then start up in this manner. However, he did testify tht it was not due to a power failure, as other electrical service in the hotel had not been interrupted.

When the elevator started up suddenly in this manner, appellant's toes were caught between the floor of the elevator and the ledge extending between the mezzanine and second floors of the hotel. The result was that appellant suffered the injuries for which he here seeks recovery.

Did these facts, and every favorable inference which may reasonably be drawn therefrom, warrant the jury in finding that respondent was negligent, and that such negligence was the proximate cause of the accident? If not, then the judgment n. o. v. was properly entered.

It is the master's duty to furnish his servant with a reasonably safe place to work. Nordstrom v. Spokane & Inland Empire R. Co., 55 Wash. 521, 104 P. 809, 25 L.R.A.,N.S., 364; South v. Seattle, Port Angeles & Western R. Co., 99 Wash. 51, 168 P. 896; Cummins v. Dufault, 18 Wash.2d 274, 139 P.2d 308. The reciprocal obligations of the master and servant, as set out in the Nordstrom case, and quoted with approval in Cummins v. Dufault, supra, are as follows: '* * * When the relation of master and servant is sustained, the law implies and fixes upon each certain duties and responsibilities which are reciprocal in their nature. These duties, in so far as they relate to the case before us, are that the master shall furnish the servant with a reasonably safe place in which to work, and shall take the precaution of an ordinarily prudent man in keeping the place reasonably safe. He shall furnish the servant with proper tools and appliances that are reasonably safe for the use required of them, and use ordinary care in so keeping them. He shall in case of any latent or hidden danger known to him and unknown to the servant apprise the servant of the existence of such danger and the possibilities of consequent injury, and he shall employ such only as have sufficient intelligence to comprehend the danger, if any, of the situation. Having thus acted, he has fulfilled his full dity to his servant, and the servant, in his turn, takes upon himself the obligation of using such care and precaution for his own safety as an ordinarily prudent man would use under like circumstances, and assumes the risk of injury from obvious and apparent dangers; and the same force of reasoning which holds the servant to assume the risk of only obvious and apparent dangers releases the master from liability from dangerous conditions or situations of which he has no knowledge, or of which he could not acquire knowledge in the exercise of ordinary diligence on his part.' 55 Wash. at pages 503-524, 104 P. at page 811.

The testimony, as summarized above, would justify the jury in finding that this accident resulted from a latent defect in the control mechanism. This latent defect caused the elevator, on several occasions, to come to a sudden stop. On the occasion of the accident it also caused the elevator suddenly to start up after coming to such a stop. The jury could also have concluded that the elevator company had knowledge of that latent defect prior to the time of the accident.

This was, in effect, notice to the master, since the elevator company stood in the position of vice-principal, charged by the master with the latter's duty to keep the elevator in a reasonably safe condition. The applicable rule is stated in Corpus Juris Secundum, as follows: '* * * notice to a servant or agent who stands in the position of a vice principal and who is charged with those duties of the master, the neglect of which occasioned the injury, is notice to the master * * *.' 56 C.J.S., Master and Servant, § 248, p. 1004.

Only one of the prior instances of elevator trouble was definitely established as having occurred after respondent took over the hotel, and this instance occurred only a day or two before the accident. The jury could have found, however, that even this much notice provided reasonable opportunity to correct the difficulty or suspend the use of the elevator. In White v. Consolidated Freight Lines, 190 Wash. 146, 73 P.2d 358, it was held that, where an employee was injured when the lights went out on his truck, evidence that another employee had reported similar trouble a day or two before warranted the jury in finding that the master had reasonable notice of the defect and opportunity to correct it.

We do not find significance in the fact that none of the prior instances involved a sudden starting of the elevator after it came to a stop. The sudden stopping served notice that the mechanism was defective. This gave fair warning that the elevator might react in other ways which would prove dangerous, or so the jury might reasonably conclude.

The elevator company, with notice of the difficulty, inspected the mechanism, but failed to make the required correction in a manner which would prevent recurrence of the trouble. The jury could reasonably find, on the basis of these facts, that the elevator company did not use reasonable care in ascertaining the cause of the trouble and in making repairs. It was not necessary to establish negligence by direct and positive evidence. As we said in McGinn v. North Coast Stevedoring Co., 149 Wash. 1, 9, 270 P. 113, 116: '* * * It [negligence of...