Page v. New York Realty Co.
| Decision Date | 08 March 1921 |
| Docket Number | 4294. |
| Citation | 196 P. 871,59 Mont. 305 |
| Parties | PAGE v. NEW YORK REALTY CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; George B. Winston Judge.
Action by Catherine Page, as administratrix of Clinton Page deceased, against the New York Realty Company. From a judgment for plaintiff and an order denying a new trial defendant appeals. Reversed, with directions.
Frank & Gaines, of Butte, for appellant.
F. C. Fluent and Canning & Geagan, all of Butte, for respondent.
This appeal is prosecuted from the judgment and order denying defendant's motion for new trial.
The defendant, New York Realty Company, is a corporation organized under the laws of the state of Montana, and is the owner of the Ph nix Building, which it conducts and operates in the city of Butte. When the accident occurred for which recovery of damages was had, one Clinton Page, a boy 20 years of age, was employed by the defendant in the capacity of passenger elevator operator in such building; the elevator being propelled by electric power. The action was brought by the plaintiff as administratrix of the estate of the deceased, to recover damages for his physical pain, suffering, and loss of earnings.
The complaint, after charging the corporate existence of the defendant and the representative capacity of the plaintiff, recites that the defendant was the owner of a certain office and apartment building in the city of Butte and was engaged in "operating and running" such building, and in connection therewith "was engaged in a hazardous occupation, to wit, as a carrier of passengers and its servants by means of elevators operated by power-driven machinery." Further, that the defendant had not complied with the provisions of the Workmen's Compensation Act (Laws 1915, c. 96) and was guilty of negligence in and about the operation of the elevator in such building, and that at a time when Clinton Page, an elevator boy in the employ of the defendant, was absent from his cage, the defendant "carelessly and negligently" moved the elevator which he had been operating, from the main or ground floor. Further, that "by reason of the dark and dangerous condition" of the elevator shaft and of the hallway and entrance on the main or ground floor leading to the elevator shaft maintained and permitted by the defendant, and because of the negligent moving of the elevator cage by the defendant, Clinton Page one of the elevator boys, stepped into the elevator shaft and fell a distance of 22 feet to the bottom of the shaft, and, as a result of injuries sustained from such fall, died after surviving an appreciable length of time.
The answer of the defendant admits its ownership and operation of the Ph nix Building, the injury and death of Clinton Page, the representative capacity of the plaintiff, and the employment of Page as an elevator boy at the time of the accident. It further admits that the defendant had not made any attempt to comply with the provisions of either plan 1 or plan 3 of the Workmen's Compensation Act, and that no insurance policy insuring payment of compensation under plan 2 of the act was filed. And affirmatively the defendant pleads its compliance with plan 2 of the Workmen's Compensation Act and its rejection by the Industrial Accident Board, and set up the defenses of contributory negligence and negligence of a fellow servant.
The reply consists of a denial of the allegations of election to come under plan 2 of the Workmen's Compensation Act, and of the other separate defenses made by the defendant. A trial to the court and jury was had and resulted in a verdict and judgment in favor of the plaintiff for the sum of $5,000.
Nineteen assignments of error are specified, but in our view but two questions are necessary for disposition of the case on its merits, viz., the hazardous character of the employment and contributory negligence.
The pivotal question in the case is whether defendant was engaged in a hazardous occupation in the operation of its passenger elevators by electric power-driven machinery, so as to require its compliance with the Workmen's Compensation Act, or be denied the affirmative defenses of contributory negligence, negligence of a fellow employee, and assumption of risk.
At the outset it is noted that the defendant takes the position that it was not engaged in a hazardous employment within the purview of the act, and that, if it was, then it had complied therewith by tendering to the Industrial Accident Board, in advance of the accident, full compliance with plan 2 of the Workmen's Compensation Act. Without expressing opinion on the merits of the second alternative defense, it is passed as not necessary of decision in this case.
The causes, from a historical viewpoint, impelling the enactment of workmen's compensation laws and the object thereof, have heretofore been reviewed at length by this court. Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 P. 554; Lewis & Clark County v. Industrial Accident Board, 52 Mont. 6, 155 P. 268, L. R. A. 1916D, 628. And the constitutionality of such enactments has been upheld. Cunningham v. Northwestern Improvement Co., supra; Shea v. North-Butte Min. Co., 55 Mont. 522, 179 P. 499. It is not necessary to do more than call attention to the former decisions of this court on these subjects, and we shall proceed at once to a consideration of the act for a determination of the question whether the operation of an electric passenger elevator is a hazardous employment within the provisions of the Workmen's Compensation Act.
The following extracts from the act bearing upon the subject are here set forth, comprising all of the provisions thereof necessary for consideration in the determination of the problem confronting us:
"Sec. 3(a). In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense; (1) that the employee was negligent, unless such negligence was willful; (2) that the injury was caused by the negligence of a fellow employee; (3) that the employee had assumed the risk inherent in, incident to, or arising out of his employment, or arising from the failure of the employer to provide * * * a reasonably safe place to work, or reasonably safe tools, or appliances.
Sec. 3(b). The provisions of section 3(a) shall not apply to actions to recover damages for personal injuries sustained by household or domestic servants, farm or other laborers, engaged in agricultural pursuits, or persons whose employment is of a casual nature.
Sec. 3(c). Any employer who elects to pay compensation as provided in this act, shall not be subject to the provisions of section 3(a), nor shall such employer be subject to any other liability whatsoever for the death of, or personal injury to any employee except in this act provided. * * *
Sec. 3(f). Every employer engaged in the industries, works, occupations or employments in this act specified as 'hazardous' may on or before the 1st day of July, 1915, if such employer be then engaged in such hazardous industry, work, occupation, or employment, or at a time thereafter, or, if such employer be not so engaged on said date, may on or after thirty days before entering upon such hazardous work, occupation, or employment, or at any time thereafter, elect whether he will be bound by either of the compensation plans mentioned in this act. * * *
Sec. 3(g). Every employee in the industries, works, occupations or employments in this act specified as 'hazardous' shall become subject to and be bound by the provisions of that plan of compensation which shall have been adopted by his employer, unless such employee shall elect not to be bound by any of the compensation provisions of this act. * * *
Sec. 4(a). This act is intended to apply to all inherently dangerous works and occupations within this state, and it is the intention to embrace all thereof in sections 4(b), 4(c), 4(d), and 4(e), and the works and occupations enumerated in said sections are hereby declared to be hazardous.
Sec. 4(b). * * * Tunnels, bridges, trestles; * * * iron or steel framed structures or parts of structures, electric light, or power plants, or systems, telegraph or telephone systems; pile driving, * * * towers or grain elevators, not metal framed; * * * erecting fire proof doors or shutters; * * * freight or passenger elevators. * * *
Sec. 4(c). Operation (including repair work) of logging, cable, electric * * * or other railroads; * * * grain elevators.
Sec. 5. If there be or arise any hazardous occupation or work other than hereinbefore enumerated, it shall become under this act and its terms, conditions and provisions as fully and completely as if hereinbefore enumerated. * * *
Sec. 6(c). Mill means any plant, premises, room or place where machinery is used * * * including elevators, warehouses and bunkers. * * *
Sec 6(j). 'Employee' and 'workman' are used synonymously, and means every person in this state, including a contractor other than 'an independent contractor,' who, after July first, 1915, is engaged in the employment of an employer carrying on or conducting any of the industries classified in sections 4(a), 4(b), 4(c), 4(e) and 5 of this act, whether by way of manual labor, or otherwise, or whether upon the premises or at the plant of such employer, or who is engaged in the course...
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... ... v. Blanchard Nav. Co. 66 Mich. 638, 11 Am. St. Rep. 541, ... 33 N.W. 744; Page v. New York Realty Co. 59 Mont ... 305, 196 P. 871; Maxwell v. Thomas, 31 A.D. 546, 52 ... ...