Putnam v. Pacific Monthly Co.

• Decision Date: 25 March 1913
• Citation: 130 P. 986,68 Or. 36
• Parties: PUTNAM v. PACIFIC MONTHLY CO.
• Court: Oregon Supreme Court

130 P. 986

68 Or. 36

PUTNAM v. PACIFIC MONTHLY CO.

Supreme Court of Oregon

March 25, 1913

Appeal from Circuit Court, Multnomah County; W.N. Gatens, Judge.

Action by Myrtle Putnam, administratrix of Mabel Putnam, deceased against the Pacific Monthly Company. Judgment for plaintiff and defendant appeals. Reversed and remanded, with direction to enter a judgment of nonsuit.

For the purpose of its enterprise the defendant occupied the fourth floor of a building in the city of Portland, and had the exclusive control and management of an elevator used by the general public and its employés in going to and from its place of business. Among other things, the complaint alleges "That on September 2, 1910, Mabel Putnam was employed by the above-named defendant, the Pacific Monthly Company, in its office on the fourth floor of said building, and in order to reach her work as such employé was compelled to take and use said elevator in going from the first floor of said building to the fourth floor thereof; that on said day, while going to her work as such employé, she entered said elevator on the first floor of said building, and which was at the time being operated by one J.P. Gerardy, the regular elevator operator in the employ of the said defendant, the Pacific Monthly Company; that when said elevator reached the fourth floor of said building the said operator thereof opened the door for the purpose of allowing and permitting the said Mabel Putnam to pass from said elevator onto the floor of said building, and, while in the act of passing out of said elevator as aforesaid, the said elevator operator so unskillfully, negligently, and carelessly manipulated handled, and operated said elevator that the same suddenly and without warning to the said Mabel Putnam began to descend very rapidly, and continued so to descend until it reached a point between the third and second floor of said building, and the said Mabel Putnam was thereby caught between said elevator and the floor of the third and the ceiling of the second floor and was fatally wounded, crushed, and mangled, from the effects of which she immediately died." The compulsion to use the elevator and the negligence of the operator set forth in this allegation are both denied; otherwise it is admitted. It is alleged by the plaintiff and denied by the defendant that the latter in running and operating the elevator, as stated in the complaint, was a common carrier in transporting employés and the general public from the first floor to the fourth floor of the building. The defendant's occupancy of that story with the control and management of the elevator and its use by the general public and its employés in going to and from the place of business were admitted by the answer. The allegation of damage to the estate of Mabel Putnam was traversed. The substance of the affirmative defense was that the elevator operator and the decedent were fellow servants and that the injuries sustained by the latter were due to the negligence and carelessness of the associate employé of the deceased, and not of the defendant. This in turn was traversed by the reply. A jury trial resulted in a verdict and judgment for the plaintiff, from which the defendant appeals.

R.A. Leiter, of Portland (Griffith & Leiter, F.J. Lonergan, and Clarence L. Eaton, all of Portland, on the brief), for appellant.

Samuel White, of Portland (Manning & White and E.S.J. McAllister, all of Portland, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

The plaintiff's theory, adopted by the court in the trial of the cause, is that, as a matter of law, the defendant in running and operating the elevator as stated in the complaint was a common carrier of passengers and bound to exercise, as such, a high degree of care to those using the elevator. The contention of the defendant is that the operation of an elevator is not a matter of common carriage and that, if it were, the relation of passenger and carrier did not exist between decedent and defendant at the time of the accident, but, on the contrary, that she was an employé to whom its measure of duty was to exercise only ordinary care in providing for her a reasonably safe appliance by which to reach her employment. Over the exception of the defendant the court took from the jury the defense of the negligence of a fellow servant by instructing them peremptorily that the decedent and the operator of the elevator were not fellow servants and directing the jury not to consider the defense of the negligence of one standing in that relation to plaintiff's intestate. The court, likewise disregarding the objection of the defendant, instructed the jury in consonance with the theory that the deceased was a passenger and the defendant a common carrier of passengers from which relation sprang the duty of the defendant to use a high degree of care to prevent accidents.

The authorities are not agreed upon the question of whether an elevator is an appliance of common carriage. A wide distinction in fact exists between the skyscrapers of New York, Chicago, and other large cities in which many elevators are in constant use and a small building in a country town having an elevator for one or two stories. In the one case the elevators in a building may carry thousands of persons daily, while in the other it will be only used by comparatively few in a week. We do not find it necessary to establish an unvarying rule on the subject in this instance.

Conceding, however, as a postulate, for the purposes of this case only, that the defendant was a common carrier in the operation of the elevator, it does not necessarily follow that it sustained that relation to the decedent, or that there was due to her from the defendant that high degree of care incumbent upon a common carrier as to its passengers. Neither is it necessary to indulge in a discussion of whether or not the decedent was at the time of the injury a passenger or an employé, as the complaint itself has put her in the latter class, for it says she was employed by the defendant in its office on the fourth floor of the building, and that in order to reach her work as such employé she was compelled to take and use the elevator, and that while going to her work as such employé she entered the elevator which was operated by another employé of the defendant. Hence, even if we should hold as a general rule that the operation and control of an elevator is or amounted to engaging in the business of common carrier of passengers, the initial pleading in the case has taken the decedent entirely out of that category and placed her in the class of employés.

The plain deduction from the testimony also is that the unfortunate girl was on her way to her work, for it shows that the distressing accident took place only ten minutes before the hour at which she was required to begin her labors. It is not shown that her compensation was increased or diminished by reason of her use of the elevator in going to her work. That contrivance was manifestly maintained for the convenience of those going to and from the place of business of the defendant, and it is so stated in substance in the complaint. On this distinction between passenger and employé as upon the main question of whether an elevator owner is a common carrier or not, the authorities are not agreed. In Knahtla v. Oregon ShortLine, etc., Ry Co., 21 Or. 136, 148, 27 P. 91, it was held that a laborer going from one point to another on a train engaged in clearing a railway track of obstructions is not a passenger. In Self v. Adel Lbr. Co., 5 Ga.App. 846, 64 S.E. 112, an employé riding on a log train in connection with his employment going to and from his work was not a passenger. To like effect is St. Louis, Iron Mt. & S. Ry. Co. v. Wiggam, 98 Ark. 259, 135 S.W. 889. In Eidem v. Chicago, R.I. & P. Ry. Co., 158 Ill.App. 82, it was ruled that, where transportation to and fro is part of the contract of employment, the employé is not a passenger. In Manville v. Cleveland & T.R.R. Co., 11 Ohio St. 417, the plaintiff as manager of a gravel train was ordered to go to a certain place to get a train and went on a passenger train beyond his destination and passed the night. Returning by train the next morning he was injured by negligence of the engineer before reaching his destination, and it was determined that he was an employé and not a passenger. Section hands carried on a car from place to place for work are deemed to be employés and not passengers in Ind., etc., Co. v. Andis, 33 Ind.App. 625, 72 N.E. 145; South Ind. Co. v, Messick, 35 Ind.App. 376, 74 N.E. 1097. In the case of Ionnone v. N.Y., N.H. & H.R. Co., 21 R.I. 452, 44 A. 592, 46 L.R.A. 730, 79 Am.St.Rep. 812, it was concluded that a snow shoveler being carried from one point to another in the progress of the work is not a passenger. In Shannon v. Union R. Co., 27 R.I. 475, 63 A. 488, a switch cleaner going on a train from one switch to another was not a passenger. In Kilduff v. Boston Elevated Ry. Co., 195 Mass. 307, 81 N.E. 191, 9 L.R.A.(N.S.) 873, a track layer being transported to and from his work was said not to be a passenger, and to the same effect is Birmingham Ry., L. & P. Co. v. Sawyer, 156 Ala. 199, 47 So. 67, 19 L.R.A.(N.S.) 717. In Sanderson v. Panther Lbr. Co., 50 W.Va. 42, 40 S.E. 368, 55 L.R.A. 908, 88 Am.St.Rep. 841, the foreman of a logging camp going on a log train to the main office of the company to see about hay for his horses is still an employé and not a passenger. In Walsh v. Cullen, 235 Ill. 91, 85 N.E. 223, 18 L.R.A.(N.S.) 911, a waitress lived in a hotel where she was employed, and, returning one evening from a walk, after her working hours, was injured by the operation of the elevator which ...