Overst. v. Sec. Storage &. Safe Deposit Co

• Decision Date: 16 June 1927
• Citation: 138 S.E. 552
• Court: Virginia Supreme Court
• Parties: OVERSTREET. v. SECURITY STORAGE &. SAFE DEPOSIT CO.

138 S.E. 552

OVERSTREET.

v.SECURITY STORAGE &. SAFE DEPOSIT CO.

Supreme Court of Appeals of Virginia.

June 16, 1927.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.]

Error to Circuit Court of City of Norfolk.

Action by Overstreet against the Security Storage & Safe Deposit Company. Verdict for plaintiff was set aside, and plaintiff brings error. Affirmed.

Walter Sibert, of Norfolk, and Geo. C. Cabell, of Portsmouth, for plaintiff in error.

Baird, White & Lanning, of Norfolk, for defendant in error.

BURKS, J. Mansbach Bros., merchants in the city of Norfolk, had leased a building in Norfolk in which to do business, and, preparatory to moving in, had employed plumbers, painters, electricians, and other workmen to put the building in order. They also employed the defendant in error, hereinafter called the Security Company, to remove their stock of goods from another building in the city to the new location. There was in the new building a freight elevator, which Mansbach Bros, put at the disposal of any and all the workmen in the building in connection with their work. This elevator extended three stories and its use was necessary for the Security Company in delivering the stock. The Security Company was expected to use the elevator for that purpose, and the use of it was fully accorded to it when not occupied by some one else. The use was by no means anexclusive use. The elevator is what is known as an Otis Automatic Electric Elevator, and was so constructed that, when all of the doors to the hatchway are closed, an electric contact is made, and the elevator will move up or down the shaft on turning the control lever to the right or left. If any one of the doors is open the elevator cannot be moved. These doors cannot be opened from outside the elevator shaft. Contact can be made, however, and the same result as closing the doors can be accomplished, by plugging the locks with a wooden pin or plug inserted in the locks so as to hold down the plunger in the door facing. This was frequently done by any one using the elevator in the Mansbach building if he desired to leave a door open.

For about a week prior to the injury complained of the Security Company had been using the elevator for delivery on the third floor of the stock it was transferring. For the sake of convenience it had, from day to day, plugged the locks on the first and third floors, leaving the doors open on these two floors, but closed on the second floor, and always removing the plugs and closing the doors before leaving for the day. It experienced no difficulty in thus operating the elevator, and neither saw nor heard of any indication that it was not working perfectly, though all of the workmen about the building were making a like use of it whenever they had occasion.

On the day of the accident Overstreet, an expert electrician, was sent to the building by his employer, Burkhart, to repair the lights on the elevator. When he arrived the lower door of the elevator was open, and it was being used by the Security Company to carry up goods. He asked for the possession of the elevator, but it was declined, unless Mansbach so directed. He got Mansbach, and came back to the elevator, and Mansbach directed the servants of the Security Company to let Overstreet have the elevator for the short time he needed it to make the repairs, and they did so, and went off for another load. Dorley, who was the assistant of Over-street, ran the elevator up to the second story, and Overstreet walked up to the second floor. When Dorley got to the second floor, he opened the door, and Overstreet held the plunger back with his finger so that Dorley could lower the elevator until its top was level with the second floor. When this was clone, he released the plunger, and went in on top of the elevator, where he had to make certain measurements. After doing this, he stepped out on the second floor, and again held the plunger back with his finger so as to enable Dorley to bring the elevator up. Dorley then brought the elevator up until its floor was on a level with the second floor when Overstreet released the plunger and stepped into the elevator. He shut the door, and Dorley turned the controller to go down, but the elevator would not move. Just what occurred at this time is best given in the language of Dorley and Overstreet, who were in sole control of the elevator, and the only persons who were present.

Dorley says that, after Overstreet got in, "we closed the door, and the elevator would not start, and I turned the crank, the lever on the starting side, for to come down, and it would not move, and he went to reach up again to get the door, and just about that time the thing come down." He says that Overstreet did not at this time touch the door, and no one else did, and that he and Over-street were the only two people there when the accident happened.

On this question Overstreet testified as follows:

"Q. Mr. Overstreet, you say the elevator went down. What do you mean by that? "A. It dropped of a sudden. "Q. Dropped suddenly?

"A. Dropped from the second floor to the mezzanine.

"Q. Do you know about the speed of that elevator is?

"A. No, sir; I couldn't tell how much the speed was. It was just like a shot dropping down.

"Q. I mean what is the regular speed of the elevator?

"A. No; it is very slow, though.

"Q. It is a freight elevator?

"A. It is a freight elevator; not so very slow, ordinary speed.

"Q. About how far did it drop?

"A. Well, it dropped the distance from the second to the mezzanine, which the mezzanine cuts off from the first to the second floor a distance of eight or ten feet, I guess, somewhere in the neighborhood of that.

"Q. During that time, Mr Overstreet, did the helper of yours retain the switch on? In other words, he turned it over to go down?

"A. He turned it over to the down position; yes, sir.

"Q. And he held it in that position? "A. Yes, sir.

"Q. And it remained in that position all the time?

"A. He had it in the down position when I looked up and started to close the door or see if the door was closed, when she dropped. 1* never did catch it; I didn't have a chance; it went from under me.

"Q. You didn't catch it?

"A. Not the door. I balanced myself with my hands.

"Q. Just explain what you did to get your hand hurt?

"A. Well, I threw my hand out to balance. My helper was holding the controller; he had a balance; I had nothing. My hand went through the top of the machine and the second floor a distance of about 12 inches with a three-eighths of an inch space.

"Q. A three-eighths of an inch space?

"A. Yes, sir.

"Q. Mr. Overstreet, had you seen either of those doors removed?

"A. I never noticed them that day. I only walked right in the door. The elevator was on the entrance at Tazewell street."

Experts testify on behalf of the plaintiff that the dropping may have been caused by the way in which the locks were plugged. A. B. Callows, one of these experts, testified as follows:

"Q. It has been testified to that this elevator dropped about eight feet. Is there any way that the connection through those locks could be responsible for that condition?

"A. Yes, sir. Yes; by several ways. One way it could be one side of the switch could be grounded, and your coils could be grounded one of your coils in your motor, and you have got half of your motor out, which would cause your motor to run away, and that would make your motor run much faster and carry the elevator down. That would be one way. And another way, the switch could be arcing in there and causing your current at the top to be coming in and out and cause the motor to run away, shooting all the current into the armature and not into the field, cutting the field out.

"Q. You speak of an arc there. What would cause that condition that would create that arc?

"A. Well, say that switch would be that far apart (indicating), one-eighth of an inch or something like that would draw an arc. By resistance, it would draw an arc.

"Q. It has been testified to that these two doors, the top and the bottom, were plugged in. It is possible that in the plugging process that that condition can be brought about there?

"A. Yes, sir.

"Q. How could that condition be brought about if they were plugged in?

"A. Well, he could plug that switch in one way and that would cause it to ground, and another way cause it to arc by being not proper contact.

"Q. Do you mean to say that, if those switches were plugged in tight, those two conditions could be brought about?

"A. By vibration of the car it could make it break a little bit and make an arc in there, and the resistance of the car would draw an arc; just go in and out."

The plaintiff gave it as opinion that "those switches being plugged in was the cause of my accident" but this was a mere opinion; he could not state it as a fact.

Both Dorley and Overstreet testify that, when the elevator would not move, Over-street reached for the door, but did not touch it, and Overstreet says that Dorley "had it in the down position when I looked and started to close the door or see if the door was closed, when she dropped" Callows, the plaintiff's expert, from whose testimony we have quoted, testified, in part, on cross-examination as follows:

"Q. Mr. Callows, suppose an elevator, even if it were plugged on the top and bottom floors, and the second floor switches' were not plugged in, and a man got into the elevator, and did not entirely close the door, and threw the motor on to come down and then closed the door, it would drop, wouldn't it?

"A. Yes, sir."

This answer the witness qualified when further pressed on cross-examination as follows:

"Q. It would drop even though the connections were perfect at the bottom floor and the third floor?

"A. How is that?

"Q. Even though the elevator was in perfect condition, it would drop under those conditions?

"A. No, it would not drop.

"Q. It would not run down at all?

"A. It would run down. It...