Quimby v. Bee Bldg. Co.

• Court: Nebraska Supreme Court
• Writing for the Court: FAWCETT
• Citation: Quimby v. Bee Bldg. Co., 87 Neb. 193, 127 N.W. 118 (Neb. 1910)
• Decision Date: 10 June 1910
• Docket Number: No. 16,078.,16,078.
• Parties: QUIMBY v. BEE BLDG. CO.

87 Neb. 193

127 N.W. 118

QUIMBY

v.BEE BLDG. CO.

No. 16,078.

Supreme Court of Nebraska.

June 10, 1910.

Syllabus by the Court.

One who installs passenger elevators in his building for the use of his tenants and the public generally is subject to the same degree of care in transporting and protecting his passengers as is imposed upon common carriers.

Common carriers of passengers should be held to the strictest accountability and be required to exercise the highest degree of care and forethought of which the human mind is capable. This rule is founded on principles of public policy and enforced by the courts for the protection of the public.

Instructions given by the trial court and set out in the opinion sustained.

Instructions requested by the defendant and refused by the court and set out in the opinion held properly refused.

Evidence examined and set out in the opinion held sufficient to sustain the verdict of the jury.

Appeal from District Court, Douglas County; Sutton, Judge.

Action by Walter Quimby, by Ella Quimby, his mother and next friend, against the Bee Building Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Greene, Breckenridge & Matters, for appellant.

Weaver & Giller, for appellee.

FAWCETT, J.

Plaintiff, a boy 12 years of age, who during the summer vacation of school was acting as a messenger boy for the Postal Telegraph Company, was injured in one of the passenger elevators of defendant. From a judgment in his favor for such injury, defendant appeals. The evidence shows that the floor of defendant's building, at each landing, projects some two or more inches into the elevator shaft and inside of the wire network surrounding the shaft. The space between the floor of the elevator at the opening thereof and the floor of the building is just enough to permit the elevator to pass; so that, if a person standing at the door of the elevator should permit his foot to extend even a very little over the edge of the elevator floor, it would be caught by the lower part of the floor landing above as he ascended. At the time of the injury complained of, plaintiff entered the elevator for the purpose of being carried to a floor above, where he desired to deliver a message. The evidence is somewhat conflicting as to whether he entered the elevator at the first or second floor, but we regard that as immaterial. When the elevator reached the third floor, plaintiff's foot was caught between the elevator floor and the projection above noted, and he received the injury complained of. Plaintiff testified that, when he entered the elevator, he “just turned around and leaned against the side of the elevator, was going to get out right away as soon as I got to the floor I wanted off on”; that he stood near the door all the time. It is evident that while standing there his foot was partially extended beyond the edge of the elevator floor. The elevator conductor testified that plaintiff “stepped clear in the car, something unusual, then stepped back. There being rubber on the floor, I did not hear him.” This plaintiff denied. The elevator conductor also testified that the boy had been going up and down the elevator for about a month; that he had several times cautioned him to stand back from the door, and, on one occasion, had pushed him back. He admits that he did not give plaintiff any such direction or caution at the time of the injury. On cross-examination he testified that he had been running an elevator for eight years; that it is dangerous for people to stand up near the door as elevators pass up and down and especially as they go up; and that it was his duty to caution people to step back whenever he saw them “up in front.” Plaintiff insists that the construction of the building and elevator as above outlined was negligent, and that defendant's agent in charge of the elevator was negligent in permitting the plaintiff, who was only a boy, to stand in what he, the conductor, knew was a place of danger.

The fourth instruction given by the court on its own motion is as follows: “You are instructed it was the duty of the defendant, the Bee Building Company, to use the greatest amount of human care and skill consistent with the operation of said elevators to prevent injuries to its passengers while they were being transported from one part of the building to the other. It is also the duty of the defendant to use greater care and caution in transporting passengers of tender age than when carrying adults or passengers of mature years, but in this case there is no presumption of negligence from the mere fact that said Walter Quimby was a passenger and received an injury while being carried by the elevator.” Defendant seriously objects to all but the last clause of this instruction on the ground that it imposed too great a burden upon defendant; that it in fact imposed upon defendant an obligation which was impossible of performance. In this contention we are unable to concur. One who installs passenger elevators in his building for the use of his tenants and the public generally is subject to the same degree of care in transporting and protecting his passengers as is imposed upon common carriers.

In Marker v. Mitchell (C. C.) 54 Fed. 637, the syllabus reads: “A landlord who runs an elevator for the use of his tenants and their visitors thereby becomes a common carrier, and is charged with the highest degree of care which human foresight can suggest, both as to the machinery and the conduct of his servants; and an instruction that he owes to persons thus put completely under his control ‘the highest degree of care consistent with the possibility of injury,’ while unfortunate in the choice of words, does not misstate the law, and, being explained by the context, is no ground for reversal.” In discussing this instruction in the opinion, Taft, Circuit Judge, said: “I am of opinion that the language used by the court was not fortunate. The highest degree of care consistent with the possibility of injury is rather a blind expression, but it seems to me that it was sufficiently explained by the context in the charge, and that it did not, therefore, mislead the jury. ‘Consistent with the possibility of injury,’ as thus explained, meant ‘commensurate with or proportionate to the possibility of injury in the use of the elevator.’ The theory of the court was that the liability of Mitchell in the running of a passenger elevator was the same as that of a common carrier, and the standard for a common carrier is the highest degree of care which human foresight can suggest. This view is sustained by the case of Goodsell v. Taylor, a decision...