Otis Elevator Co. v. Cameron

• Decision Date: 29 June 1918
• Docket Number: (No. 8110.)
• Citation: 205 S.W. 852
• Parties: OTIS ELEVATOR CO. v. CAMERON et al.
• Court: Texas Court of Appeals

205 S.W. 852

OTIS ELEVATOR CO. v. CAMERON et al.

(No. 8110.)

Court of Civil Appeals of Texas. Dallas.

June 29, 1918.

Rehearing Denied October 19, 1918.

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Action by E. C. Harpold and wife against R. L. Cameron and another. From judgment for the named defendant against defendant Otis Elevator Company, that company appealed; and, from judgment for plaintiff against Cameron, he brought error, which was consolidated with the appeal. Affirmed.

John Charles Harris, of Houston, for appellant. Etheridge, McCormick & Bromberg, of Dallas, for appellees Harpold. Wood & Wood and W. W. Hagebush, all of Dallas, for appellee Cameron.

TALBOT, J.

E. C. Harpold and wife, L. B. Harpold, instituted suit in the district court of Dallas county, Tex., against R. L. Cameron and Otis Elevator Company to recover damages sustained by them on account of the death of their minor son, Lloyd L. Harpold. The defendants filed answers to the suit of the plaintiffs, and R. L. Cameron, by cross-action against the Otis Elevator Company, prayed that, in the event any judgment was rendered against him, he have judgment for a like amount over and against said company. The sufficiency of the pleadings is not questioned, and a detailed statement of them is unnecessary. The case was tried before a jury and submitted on special issues. Upon the findings of the jury the court rendered judgment in favor of plaintiffs against the defendant Cameron for the sum of $3,200 and in favor of Cameron on his cross-action against the Otis Elevator Company for the same amount, no judgment being rendered in favor of plaintiffs against said company. From the judgment against it Otis Elevator Company appealed and filed a transcript therein in this court which took the number 7942. R. L. Cameron gave notice of appeal but failed to perfect the same. On January 2, 1918, however, he filed a petition for writ of error and supersedeas bond, and it was agreed by counsel representing the several parties to the suit that in lieu of filing another statement of facts and transcript in this court, in connection with his petition for writ of error, the same statement of facts and transcript with the addition thereto of the petition for writ of error and the supersedeas bond on writ of error might be used in connection with the writ of error proceedings. May 4, 1918, upon motion of the defendants in error Harpold and wife, the writ of error presented by R. L. Cameron was consolidated with the appeal prosecuted by Otis Elevator Company and later a submission taken of the consolidated case.

The material facts deducible from the evidence and found by the jury, in substance, are as follows: The defendant R. L. Cameron was conducting an automobile garage and repair shop at 1324 Jackson street in the city of Dallas, Tex., where he had a force of more than five men working all the time handling and repairing automobiles; but he had not taken out workman's compensation insurance. The defendant Otis Elevator Company was engaged at Houston, Tex., in the manufacture and sale of passenger and freight elevators. On April 3, 1914, Otis Elevator Company and R. L. Cameron entered into a written contract by the terms of which said company, for a consideration of $370, agreed to furnish and erect for Cameron, in the building used by him in the city of Dallas as an automobile garage, a certain hand-power freight elevator capable of lifting a load of 5,000 pounds, and to be used by Cameron in raising and conveying automobiles from the first to the second floor of his garage, a distance of about 17 feet. The written contract for the erection of the elevator contained this clause: "All material and workmanship covered by our guaranty against defects for one year." There was no express warranty or guaranty given in the contract. The elevator was installed and the work completed by the Otis Elevator Company, and on April 25, 1914, Cameron, in the city of Dallas, Tex., signed a written instrument in which he said:

"We have looked over the elevator plant furnished and completed by you in R. L. Cameron building in this city, and so far as we can see everything appears to be satisfactory and in accordance with your contract."

Some time in April, 1915, R. L. Cameron employed Lloyd L. Harpold, a young man about 18 years of age, and son of the plaintiffs E. C. Harpold and L. B. Harpold, to work in the garage and repair shop as helper. As one witness expressed it, "he was a man of general all round work." On May 28, 1815, Lloyd L. Harpold was working at the freight elevator installed by defendant Otis Elevator Company taking up an automobile, which weighed 3,000 or 35 hundred pounds, to the second floor of the garage. When the elevator was within about 12 inches of the second floor, it would not work and stopped, or, as the witnesses expressed it, "stuck." Thereupon Lloyd Harpold went to the assistant foreman, Spencer, and reported that the elevator had "stuck." Then, in company with Spencer, Lloyd Harpold walked back to the elevator, and while he and Spencer were standing there looking up at the elevator, it fell without any warning, and caught Lloyd Harpold underneath and killed him. Spencer narrowly escaped being caught, and probably would have been had he not jumped back. After the accident, an examination was made, and it was discovered that the large "gear wheel" of the elevator, which was made of cast iron, had broken because of a sand hole and crack in it. The sand hole found in the gear wheel was a structural defect and existed at the time of the original installation of the elevator, and but for such defect the elevator would not have given way and fallen.

The specific findings of the jury, in substance, are: (1) That the elevator was "a thing of such a nature that it was reasonably certain to place life and limb in peril when negligently made or set up; (2) that the Otis Elevator Company knew at the time it installed the elevator that the same would be used by persons other than R. L. Cameron, and so used without new tests thereof; (3) that the Otis Elevator Company, in the exercise of ordinary care, could have discovered the existence of the sand hole in the gear wheel at the time of or before its installation; (4) that the elevator when installed and accepted by R. L. Cameron was composed in part of a defective gear wheel in that it had a sand hole in it, and that such defect caused the elevator to collapse on May 28, 1915; (5) that a person, in the exercise of ordinary care and by the tests in general use for the testing of such castings, could have discovered the weakened and defective condition of said gear wheel after the elevator was installed and prior to its collapse and fall on May 28, 1915; (6) that a person, in the exercise of ordinary care in furnishing his employés a reasonably safe place to work, would have inspected the gear wheel, by the application thereto of known ordinary tests, to discover weaknesses or defects therein before the collapse and fall of the elevator; (7) that Lloyd Harpold to a certain extent was guilty of contributory negligence which proximately caused his death; (8) that plaintiffs would have received pecuniary aid from Lloyd Harpold had he not been killed; (9) that the damages recoverable by plaintiffs should be diminished on account of the contributory negligence of Lloyd Harpold one-fifth; (10) that $2,000 paid now to each of the plaintiffs would compensate them for the loss of the pecuniary aid which Lloyd Harpold would have rendered them had he not been killed; (11) that R. L. Cameron relied on the Otis Elevator Company exercising ordinary care to manufacture and install a reasonably safe elevator in his building, and that said company knew that he was relying on it to exercise such care in manufacturing and installing the elevator; (12) that the elevator in question was not in good condition when R. L. Cameron signed his written final acceptance therefor on April 25, 1914; (13) that the Otis Elevator Company did not know of any defect in the elevator at the time of its final acceptance by R. L. Cameron on April 25, 1914, and did not know of any defect in it at the time of the accident on May 28, 1915; (14) that the defect in the gear wheel which broke at the time of the accident on May 28, 1915, could have been discovered by any reasonable inspection; (15) that the Otis Elevator Company made no test as to safety of the elevator for the use for which it was sold and guaranteed before or when it was installed, or after its installation, so far as the jury knew; (16) that the elevator at the time of the accident was in a structurally dangerous condition, in that there was a sand hole and crack in the gear wheel, and that such structurally dangerous condition was created partially by the Otis Elevator Company; (17) that such structurally dangerous condition was the proximate cause of the accident; (18) that if the Otis Elevator Company had made proper inspection and tests of the elevator when it was installed, or during the year elapsing thereafter, it would have discovered the defect which was the proximate cause of the accident; (19) that the Otis Elevator Company did not exercise ordinary care in installing and maintaining the elevator.

We shall first dispose of the assignments of error urged by R. L. Cameron. These assignments are six in number, and a consideration of the brief presenting them is objected to on the ground that the same was not filed in the district court before the transcript was taken out as required by law and the rules of this court; and a consideration of the first, second, and third assignments, which are grouped, is objected to because neither of them constitutes a ground of Cameron's motion for a new trial in the district court, but each is "an attempted summary or abridgement thereof which is not permissible." The briefs do not appear to have been filed...