Ohio Valley Trust Co. v. Wernke

• Decision Date: 04 June 1908
• Docket Number: No. 6,302.,6,302.
• Citation: 84 N.E. 999,42 Ind.App. 326
• Parties: OHIO VALLEY TRUST CO. v. WERNKE.
• Court: Indiana Appellate Court

42 Ind.App. 326

84 N.E. 999

OHIO VALLEY TRUST CO.

v.WERNKE.

No. 6,302.¹

Appellate Court of Indiana.

June 4, 1908.

Appeal from Superior Court, Vanderburgh County; Alexander Gilchrist, Judge.

Action by William Wernke against the Ohio Valley Trust Company. From a judgment for plaintiff, defendant appeals. Reversed.Elmer E. Stevenson, for appellant. James T. Cutler and Spencer & Brill, for appellee.

RABB, C. J.

The appellee, as administrator of the estate of Edward Wernke, brought this action to recover damages for the death of his intestate, alleged to have been occasioned by the negligence of the appellant. The complaint was in one paragraph. Appellant's demurrer to the same was overruled, and proper exception reserved, answer of general denial filed, a jury trial had, resulting in a verdict in favor of appellee, and his damages assessed at $2,845. Appellant's motion for a new trial overruled, and judgment rendered on the verdict. The errors assigned in this court call in question the sufficiency of the complaint, and the correctness of the ruling of the court below on appellant's motion for a new trial.

The substantial averments of the complaint are that the appellant is the owner of a five-story building in the city of Evansville, used as an office building by appellant, and in which the offices therein were rented to tenants; that appellant maintained in said building a passenger elevator for the use of its tenants occupying its rooms above the ground floor, and persons having business with them; that the elevator shaft was inclosed in a wire screen, with a door in the screen opening into the elevator on each floor of the building, so constructed that the same was opposite the door in the elevator cage when the floor of the elevator is on a level with the particular floor of the building, and such doors so constructed that they are opened and closed by sliding them back and forth on rollers. The complaint charges that the elevator should have been so constructed that these doors could only be opened from the inside of the elevator at a time when the same was on a level with the floor of the building, and that they would remain closed at all other times, but that the elevator in question was old, worn, insecure, and unsafe, in that the doors aforesaid, upon being closed by the operator of the elevator, would often rebound and remain open after the elevator had passed, and that, instead of running smoothly at a regular rate of speed, the elevator often jerked suddenly and rapidly upward a distance of several feet, or dropped down suddenly several feet, and by reason of such tendency it was often impossible for the operator to control the same; that on the 13th day of December, 1905, the elevator was in charge of and operated by an employé of the appellant, employed for that purpose by appellant, who was incompetent, inexperienced, negligent, and careless in the operation of said elevator, all of which was known by the appellant, and that the appellant negligently selected and employed the said incompetent and inexperienced person, and failed and neglected to properly instruct him in regard to his duties in the operation and control of said elevator; that at said time the appellee's intestate had occasion to use said elevator to gain access to some of the offices in said building, and for that purpose took passage on said elevator, and was carried to the third floor of said building, where his business called him; that his business in the building also required him to visit offices on the fifth floor at the same time, and that he endeavored to take passage in the elevator to carry him from the third floor to the fifth floor; that when he reached the elevator for this purpose the door in the cage was standing open; that the operator of the elevator had carelessly left the same open on his previous trip, or that, owing to the defective, old, worn, and insecure condition of the door, the same had rebounded when the operator attempted to close it, and had remained open; that when appellee's intestate reached the said doorway, the elevator was opposite the second floor, coming up; that he immediately called out to the operator of the elevator, and said “Going up,” for the purpose of causing him to stop at the third floor and take him up; that the operator heard and understood the signal, and checked the elevator, but that, by reason of his incompetency, inexperience, and negligence, he failed and neglected to bring the elevator to a stop until it had passed above the level of the floor about six inches; that said intestate, having no knowledge of the defective, insecure, and unsafe condition of the said elevator and of the doors thereof, and of the inexperience, incompetence, and negligence of said operator, and having no notice or knowledge of the danger, thereupon stepped one foot upon the floor of the elevator; that thereupon the said operator attempted to bring the elevator down on a level with the floor, and by reason of his incompetency and inexperience he negligently and carelessly threw the lever the wrong way, or by reason of the defective, unsafe, and insecure condition of said elevator, as above set forth, and the door thereof, the same was caused to jerk suddenly upward, with great force and speed, a distance of about - feet, before said intestate was able to get his other foot upon the elevator; that by reason thereof his body was suddenly thrown backward and downward under the elevator and into the shaft below; that he was thrown violently to the bottom of the shaft a distance of - feet, and instantly killed.

The only point made against the sufficiency of this complaint is that it affirmatively shows that the appellee's intestate was guilty of contributory negligence in attempting to enter the elevator when it was in motion. Authorities are cited to support the contention of the appellant that an attempt upon the part of one to enter a passenger elevator when the same is in motion is contributory negligence as a matter of law. Conceding this to be true, we think the complaint in question does not show that the deceased attempted to enter the elevator when it was in motion. The averments of the complaint upon this subject are that the “deceased called out to said Wilson, and said, ‘Going up,’ for the purpose of causing him to stop at the third floor and take him up; that Wilson heard the signal, and checked the elevator, but that, by reason of his incompetence, inexperience, and negligence, he failed and neglected to bring the same to a stop until it had passed above the level of the floor about six inches; that said Wernke *** thereupon stepped one foot upon the floor of the elevator,” etc. It sufficiently appears from these averments of the complaint that the deceased stepped upon the elevator when it had been brought to a stop six inches above the level of the floor, and not while it was in motion.

Among the reasons assigned for a new trial is the insufficiency of the evidence to sustain the verdict of the jury, the appellant's contention being that the evidence affirmatively shows the appellee's intestate to have been guilty of contributory negligence, in that it shows that he met his death while attempting to get into the elevator while the same was in motion. It is agreed that appellee's intestate was killed by being thrown from the elevator cage when he was in the act of boarding the same, in such manner that he fell from the cage, and underneath the same, down the shaft. Both sides agree that it was an upward movement of the elevator that threw the deceased, the appellant contending that the evidence shows that the boy attempted to board the elevator while the same was going up, and that the movement of the elevator at the time had the effect to cause the accident. Appellee contends that the elevator was either brought to a...