Ohio Valley Trust Company v. Wernke

• Court: Indiana Appellate Court
• Writing for the Court: RABB, C. J.--
• Citation: Ohio Valley Trust Company v. Wernke, 42 Ind.App. 326, 84 N.E. 999 (Ind. App. 1908)
• Decision Date: 04 June 1908
• Docket Number: 6,302
• Parties: OHIO VALLEY TRUST COMPANY v. WERNKE

84 N.E. 999

42 Ind.App. 326

OHIO VALLEY TRUST COMPANY v. WERNKE

No. 6,302

Court of Appeals of Indiana

June 4, 1908

Rehearing denied October 8, 1908.

From Superior Court of Vanderburgh County; Alexander Gilchrist Judge.

Action by William Wernke against the Ohio Valley Trust Company, for the death of Edward Wernke, his infant son. From a judgment for plaintiff, defendant appeals.

Reversed.

Elmer E. Stevenson, for appellant.

James T. Cutler, John W. Spencer and John R. Brill, for appellee.

RABB C. J. Roby, J., absent.

OPINION

RABB, C. J.--

The appellee brought this action to recover damages for the death of his minor son, 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, proper exception reserved, answer of general denial filed, and a jury trial had, resulting in a verdict in favor of appellee, and assessing his damages at $ 2,845. Appellant's motion for a new trial was 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 offices are rented to tenants. Appellant maintained in said building a passenger elevator for the use of its tenants occupying rooms above the ground floor and persons having business with them. The elevator shaft was enclosed in a wire screen, with a door in the screen, opening into the elevator on each floor of the building, so constructed that it was opposite the door in the elevator cage when the floor of the elevator was on a level with the particular floor of the building, such doors being so constructed that they opened and closed by sliding them back and forth on rollers. The complaint alleges that the elevator should have been so constructed that these doors could be opened only from the inside of the elevator at a time when it was on a level with the floor of the building, and that they should 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 suddenly several feet, and by reason of such tendency it was often impossible for the operator to control the same; that on December 13, 1905, the elevator was in charge of and operated by an employe of the appellant, engaged for that purpose, 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 said incompetent and inexperienced person, and failed and neglected properly to instruct him in regard to his duties in the operation and control of said elevator; that at said time the decedent 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, and that he endeavored to take passage in the elevator, to be carried 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 said door open on his previous trip, or, owing to the defective, old, worn and insecure condition of the door, it had rebounded when the operator attempted to close it, and had remained open; that when decedent reached 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; that the operator heard and understood the signal, and checked the elevator, but, by reason of his incompetency, inexperience and negligence, failed and neglected to bring the elevator to a stop until it had passed about six inches above the level of the floor; that said decedent, having no knowledge of the defective, insecure and unsafe condition of said elevator and of the doors thereof, and of the inexperience, incompetency and negligence of said operator, and having no notice or knowledge of the danger, stepped one foot upon the floor of the elevator; that thereupon said operator attempted to bring the elevator down to a level with the floor, but 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 and the door thereof, as before set forth, said elevator was caused to jerk suddenly upward with great force and speed a distance of about -- feet before said decedent 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 decedent 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 decedent 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, by reason of his incompetency, inexperience and negligence, failed and neglected to bring the same to a stop until it had passed about six inches above the level of the floor; 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 decedent 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, the appellant's contention being that the evidence affirmatively shows the decedent to have been guilty of contributory negligence in that he met his death while attempting to get into the elevator while the same was in motion. It is agreed that the decedent 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 decedent, the appellant contending that the evidence shows that he attempted to board the elevator while the same was going up, and that the movement of the elevator at the time had the effect of causing the accident. Appellee contends that the elevator was either brought to a standstill, or so nearly so that it was apparently safe for one to attempt to board it; that it would not have been unsafe, and the injury would not have happened, if it had not been for the action of the person in charge of the elevator; that when the decedent attempted to enter the elevator the operator so used the lever by which its movement was controlled as to give it a sudden and violent jerk upward, thereby throwing the decedent to the movements of the unfortunate lad as he attempted to enter the elevator was the appellant's witness, the young man who at the time was operating the elevator, and whose negligence, it is charged by appellee, caused decedent's death. This witness testified, with reference to the accident, that when he was on the ground floor a call came for him to go to the fifth floor, and that while going up, in answer to this call, he saw the decedent when his range of vision reached above the third...