Otis Elevator Company v. Yager

• Decision Date: 29 June 1959
• Docket Number: No. 16089.,16089.
• Citation: 268 F.2d 137
• Parties: OTIS ELEVATOR COMPANY, a Corporation, Appellant, v. Dorothy YAGER, Trustee of the Estate of Harry Yager, Decedent, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

268 F.2d 137 (1959)

OTIS ELEVATOR COMPANY, a Corporation, Appellant, v. Dorothy YAGER, Trustee of the Estate of Harry Yager, Decedent, Appellee.

No. 16089.

United States Court of Appeals Eighth Circuit.

June 29, 1959.

William P. O'Brien, St. Paul, Minn. (Cummins, Cummins, Hammond & Ames, St. Paul, Minn., on the brief), for appellant.

Michael A. Kampmeyer, St. Paul, Minn. (Harry S. Stearns, Jr., and Stearns & Kampmeyer, St. Paul, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.

GARDNER, Chief Judge.

This action was brought by appellee as trustee of her deceased husband's estate to recover damages for his death by wrongful act of appellant. In the course of this opinion appellee will be referred to as plaintiff and appellant as defendant. In her complaint, plaintiff charges:

"VI. That sometime prior to the 29th day of October, 1956, defendant sold and installed a certain elevator system in premises located at 408 St. Peter Street in the City of St. Paul, State of Minnesota known as the Hamm Building; that said system consisted of four elevators and shafts, doors, and other appurtenances and accessories thereto extending from the top floor of said building to the sub-basement thereof and that one of said elevators and facilities relating thereto was known as elevator number two; that as part of said system as required by law said system was so designed and constructed so as to prevent the opening of the doors to the elevators except and when the elevator was stationed at the floor of the door to be opened; that on the second floor of said building the door to elevator number two was so designed so as to have a small hole through which a pin was to be inserted to permit authorized personnel to open said door from the outside floor level when said elevator was stationed at said floor.

"VII. That after the sale and installation of said elevator systems and extending up to and through October 29, 1956, and to the present time, defendant maintained control of said elevator system including elevator number two and agreed with the owners thereof to repair, service and maintain said system in a safe and workable condition and so as to conform to the laws of the State of Minnesota and the rules and regulations of the Industrial Commission of said State.

"VIII. That in fact defendant so negligently repaired, serviced and maintained said elevator system so as to permit it to get into a severe state of disrepair; that it permitted the mechanism for locking the second floor door of elevator number two to become inoperative, that it failed to properly inspect and repair said mechanism, that it knew or should have known that said mechanism had or would become inoperative so as to permit said door to open when the elevator was not at the landing and that it failed to warn persons lawfully using the elevator thereof.

"IX. That on or about October 29, 1956, plaintiff\'s decedent Harry Yager while performing his regular duties as an employee of the Hamm Building was required to use said elevator, that he opened the door of elevator number two on the second floor and that said elevator was not at said landing but nevertheless the protective mechanism failed to properly operate and said doors opened causing plaintiff\'s decedent to fall and be thrown into said elevator shaft where he fell a distance of three floors into the bottom of the shaft in the sub-basement receiving numerous and severe injuries which caused his death thereafter; that said accident and the death of plaintiff\'s decedent were directly and proximately caused by the negligence and carelessness of defendant."

Defendant, by its answer to plaintiff's complaint, admitted all allegations going to the jurisdiction of the court, denied all alleged acts of negligence, admitted that it had sold and installed the elevators in the Hamm Building and that it had agreed to maintain the same, but denied that it retained control of said elevator system. It affirmatively alleged that:

"* * * at all times the operation, use and control as well as the right of operation, use and control was at all times referred to in the Complaint solely and exclusively in the owners and operators of the Hamm Building premises as well as their agents and servants including the plaintiff\'s decedent."

While admitting that plaintiff's decedent died while on the premises of the Hamm Building, it affirmatively alleged that:

"* * * said death was caused by his own act or negligent acts and omissions and the negligence of others in no way under the control of this defendant, and further alleges that the plaintiff\'s decedent assumed the risk of known dangers while attempting to operate and use said elevator system without qualifications and supervision and while in the employment of those managing and operating the Hamm Building premises."

The premises referred to in the record as the Hamm Building is a six story structure located in the City of St. Paul, Minnesota, and is occupied by business tenants, doctors, lawyers, dentists, etc. It is adjoined by a department store known as Schunemans, and Schunemans occupy a large part of the basement of the Hamm Building. The Hamm Building is owned and managed by United Properties, Inc., a corporation, with offices in said building. For the service of its tenants, it provides four electrically man-operated passenger elevators which are located in a group at the east side wall of said building and about centrally located in said building. The elevators are numbered consecutively from left to right. The four elevators were constructed by defendant, Otis Elevator Company, and installed in said building by defendant in 1919. There is a shaft for each elevator; one, two, and four shafts extend upward from the basement to the sixth floor; number three shaft extends downward to a sub-basement three or four feet deeper which is one floor lower than the Schunemans basement and is entered through a locked mesh covered door. The base of the shafts are known as "pits". The shafts are not separated by walls but the shafts do contain the guide rails on which the elevators run. The six floors in said building each have four entranceways to said elevators with sliding doors attached to said entranceways. All said doors are substantially identical except on the second floor where the doors, except elevator number three, have a keyhole therein and a warning sign thereon. This warning sign is printed in large letters at the keyhole, reading as follows: "Warning — Be sure car is here before entering." The number three elevator door has a similar keyhole in the basement. To insert into this keyhole on the elevator doors on the second floor a key is provided. It is six or eight inches in length and about an eighth of an inch in diameter. This key is used by the owner's employees at the Hamm Building to open the elevator doors on the second floor and is kept for said use by United Properties maintenance employees in the base of cigarette holders or stools alongside the elevator doors. The purpose of the keyhole is that when the operator leaves the elevator unattended and closes the doors, the key is a means of opening the doors from the outside to re-enter the elevator. A so-called parking device is to prevent the opening of the doors more than three or four inches when the elevator car is not at the floor. Above the sixth floor and immediately over the four elevator shafts is the "penthouse". In this small building is located the mechanical equipment to raise and lower the elevator cars.

Harry Yager, plaintiff's intestate, at and for some two and a half years prior to the accident involved in this action was employed by the owners of the Hamm Building as a night janitor or maintenance man. His general duties were to do cleaning in offices and washrooms. He was not a licensed elevator operator, although such licenses were required by the City of St. Paul. On the date of the accident, he commenced his work at the Hamm Building at 5:31 p. m. A short time thereafter he was observed on the sixth floor by his supervisor, Mr. Tewksbury, standing at the number three elevator, apparently waiting for the number three elevator to pick him up. The number three elevator is used for night service for transporting persons coming in and leaving the building. The number three elevator car and its operator rest on the main floor when not in use. The number two elevator was used by Mr. Tewksbury to go from floor to floor and Mr. Yager was supposed to use number one elevator for his work. Mr. Tewksbury did not observe Mr. Yager get on the number three elevator. Mr. Sweeney, the night elevator operator on number three elevator, came to work at 6:00 p. m. on that day, and he picked up Harry Yager with number three elevator on the sixth floor and took him to the second floor where he got off. At about 6:30 p. m., Mr. Yager was observed by Mrs. Olding, a co-employee, standing near the elevator doors on the second floor in a bent-over position, as though he were listening. Within a short time thereafter Mr. Sweeney heard a noise in the number two shaft. He did not report it to Mr. Tewksbury because within a short time thereafter Mr. Tewksbury rang him to come to the second floor and said, "Harry fell down", or something like that, and asked him to come down with him. Mr. Sweeney and Mr. Tewksbury drove the number three elevator to the sub-basement. When they reached the basement they found Mr. Yager lying in the number two shaft pit. He was still alive but did not talk. Mr. Tewksbury found the pin for opening the door on the second floor lying in the pit and also Mr. Yager's cigarettes and glasses. Mr. Yager was removed from the shaft within a short time thereafter and later died from his injuries.

Not long afterwards that same evening police officers made strong attempts to open the second floor door of number two elevator. They took...