National Biscuit Company v. Wilson
| Decision Date | 11 December 1907 |
| Docket Number | 21,158 |
| Parties | National Biscuit Company v. Wilson |
| Court | Indiana Supreme Court |
From Marion Circuit Court (12,099); Henry Clay Allen, Judge.
Action by Melvin L. Wilson against the National Biscuit Company. From a judgment on a verdict for plaintiff for $ 4,000 defendant appeals. Transferred from Appellate Court under subd. 2, § 1337j Burns 1901, Acts 1901, p. 565, § 10.
Reversed.
John B Elam, James W. Fesler and Harry J. Elam, for appellant.
John M Bailey for appellee.
Appellee brought this action to recover damages for a personal injury caused by the falling of a freight elevator while he was in appellant's employ. The first paragraph of the complaint alleged, in substance, that appellant was engaged in carrying on a bakery business in the city of Indianapolis, and maintained an elevator in its business house for the purpose of transporting merchandise and employes from one floor to another in the building; that by long-continued use and overloading the elevator had become worn and out of repair; that appellant failed and neglected to inspect the elevator and suffered the same to remain out of repair and unsafe; that because of its weak and unsafe condition, while appellee was transporting a quantity of flour to the third floor of the building, a large cogwheel connected with said elevator broke, without warning, and the elevator fell with appellee to the basement, causing the injuries of which he complains. In the second paragraph of complaint appellant was charged with actionable negligence in failing to provide and equip the elevator with proper safety devices to prevent the same from falling in case of accident. The third paragraph alleged that the old, worn and shaky condition of the elevator caused one of the loaded trucks placed thereon by appellee to roll to one side so as to catch upon the joists of the second floor and break the cogwheel, thereby precipitating the fall. Appellant answered by general denial. A trial by jury resulted in a verdict for appellee. Appellant unsuccessfully moved for judgment in its favor upon the answers of the jury to interrogatories, and for a new trial, and thereupon judgment was rendered upon the general verdict in favor of appellee.
It is alleged that the court below erred in overruling appellant's motion for judgment upon the answers of the jury to interrogatories notwithstanding the general verdict, and in overruling appellant's motion for a new trial.
The jury found in answer to proper interrogatories that the elevator was equipped with the safety appliances usually placed upon freight elevators; and also that the elevator did not catch upon the second floor, and thereby cause the fall. It is accordingly manifest that the verdict cannot rest upon the proximate negligence charged in the second and third paragraphs of complaint. Gilliland v. Jones (1896), 144 Ind. 662, 55 Am. St. 210, 43 N.E. 939; Evansville, etc., R. Co. v. Maddux (1893), 134 Ind. 571, 33 N.E. 345; Olds v. Moderwell (1882), 87 Ind. 582; Frazer v. Boss (1879), 66 Ind. 1; Chicago, etc., R. Co. v. Cunningham (1904), 33 Ind.App. 145, 69 N.E. 304; Beasley v. Phillips (1898), 20 Ind.App. 182, 50 N.E. 488; Knight v. Knight (1893), 6 Ind.App. 268, 33 N.E. 456.
There is no affirmative finding exonerating appellant from the charge of negligence embodied in the first paragraph of complaint, and we must assume that the general verdict rests upon that paragraph, and the court, therefore, rightly overruled appellant's motion for judgment in its favor.
The grounds of appellant's motion for a new trial were that the verdict was not sustained by sufficient evidence and was contrary to law, and that errors of law occurred at the trial in giving certain instructions. The fifth and seventh instructions complained of related to the burden and manner of proving contributory negligence, and were within the rule approved by this court and were not erroneous. Pittsburgh, etc., R. Co. v. Collins (1907), 168 Ind. 467, 80 N.E. 415, and cases cited. It is charged that the twenty-third instruction left the determination of the amount of damages to the discretion of the jury without reference to the evidence or rules of law. The instruction was not subject to this criticism. Pittsburgh, etc., R. Co. v. Collins, supra, and cases cited.
It appears from the evidence of appellee that he had been in appellant's employ first as a salesman driving a wagon and had used the elevator occasionally in bringing down goods weighing from three to five hundred pounds. About two weeks prior to the accident he was given a position which kept him about the bakery, and at the time of receiving his injury was engaged in unloading flour from a dray and taking it to the third floor of the building. Twenty-seven sacks of flour, each weighing ninety-eight pounds, were loaded upon two trucks, which were placed crosswise upon the elevator. Appellee set the elevator in motion and started up with the load, and when three or four feet up the elevator began shaking and jarring, accompanied with cracking noises, and when about the second floor dropped sixteen inches, then rose about sixteen inches and then fell to the bottom of the basement. The elevator moved a little faster than an ordinary walk, and always shook some, but worse when heavily loaded. Appellee made no effort to turn off the power. Other witnesses testified that the elevator vibrated considerably when heavily loaded, and was occasionally tightened up; that belts would slip once in a while with a heavy load, causing the elevator to stop momentarily, and then it would move on. The elevator was of 3,000 pounds capacity, and had a floor platform about eleven feet long and five feet wide. This is, in substance, all the evidence furnished by appellee with reference to the happening of the accident. Is such evidence sufficient to sustain the charge of negligence made in the first paragraph of the complaint? It will be remarked that no effort was made to point out the specific cause or defect from which the accident resulted, but the jury was left to infer or merely guess at the proximate cause. There was no evidence from appellee as to the length of time the elevator had been in use, or that it had ever been overloaded, or was out of repair in any respect which might cause such an accident. No failure to repair was proved, inasmuch as no special defects were shown. We are unable to say from the evidence that the vibrations mentioned were not such as appear in any freight elevator carrying a similar burden. The driving belt occasionally slipped and allowed the elevator to stop, but this belt only served to hoist, and not to support, the elevator, and its slipping would not account for the fall. If a mere showing that such an accident occurred raised a presumption that appellant was guilty of negligence, and imposed upon it the burden of explaining the circumstances and showing such facts as would exempt it from blame, then this verdict can be sustained. But this is not the law, and the doctrine res ipsa loquitur does not apply to cases of the class to which this belongs. When an employe is injured while operating a freight elevator, the mere happening of an accident raises no presumption, and cannot serve as proof of the master's negligence. Hill v. Iver Johnson, etc., Co. (1905), 188 Mass. 75, 74 N.E. 303; Moran v. Racine Wagon Co. (1893), 74 Hun 454, 26 N.Y.S. 852; Kirby v. Rainier-Grand Hotel Co. (1902), 28 Wash. 705, 69 P. 378; Robinson v. Wright & Co. (1892), 94 Mich. 283, 53 N.W. 938; Davidson v. Davidson (1891), 46...
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