Real Estate Trust & Ins. Co. Inc v. Gwyn

• Decision Date: 14 March 1912
• Citation: 74 S.E. 208,113 Va. 337
• Court: Virginia Supreme Court
• Parties: REAL ESTATE TRUST & INS. CO., Inc., et al. v. GWYN.

74 S.E. 208

(113 Va. 337)

REAL ESTATE TRUST & INS. CO., Inc., et al.

v.GWYN.

Supreme Court of Appeals of Virginia.

March 14, 1912.

1.Carriers (§ 340*)—Elevators — Negligence—Last Clear Chance.

Where one attempting to leave a descending elevator which failed to stop was struck on the head by the top of the car and almost instantly thereafter caught between it and the floor sill and killed, the doctrine of the last clear chance had no application.

[Ed. Note.—For other cases, seeCarriers, Cent. Dig. § 1354;Dec. Dig. § 340.*]

2.Carriers (§ 321*) — Elevators — Action for Causing Death—Instruction—Words and Phrases—"Error in Extremis."

In an action to recover for the death of one killed by being caught between the top of a descending elevator and a floor sill, where there was evidence that the decedent put one foot through the partly opened elevator door and upon the floor sill without the elevator being stopped, there was no wan-ant for an instruction upon the doctrine of "error in extremis" which presupposes that the party who invokes it is himself free from fault in creating the emergency.

[Ed. Note.—For other cases, seeCarriers, Cent. Dig. §§ 1247, 1326-1337, 1343;Dec. Dig. § 321.*]

Error to Law and Chancery Court of City of Norfolk.

Action by Helen C. Gwyn, administratrix, against the Real Estate Trust & Insurance Company, Incorporated, and others.Froma judgment for plaintiff, defendants bring error.Reversed and remanded for new trial.

The following instructions were given for plaintiff:

"(1) If the jury believe from the evidence that Walter B. Gwyn while a passenger on the elevator in question and in the exercise of reasonable care on his part was killed by reason of the negligence of the employé who was running the elevator, as charged in the declaration, then they must find for the plaintiff against such of the defendants as they may believe from the evidence were engaged as lessees in the actual operation of the building and the elevator in question.

"(2) If the jury believe from the evidence that the elevator in question after it had stopped at the third floor of the Dickson building, and while its switch handle was in the stop position, began to descend without any action on the part of the elevator boy, they are instructed that such an occurrence raised a prima facie presumption of negligence on the part of such of the defendants as were engaged as lessees in the actual operation of the building and elevator.

"(3)The court instructs the jury that such of the defendants as they may believe from the evidence were engaged as lessees in the actual operation of the building and elevator in question owed the duty to Walter B. Gwyn to exercise reasonable care to prevent injuring him by defects or faults in said elevator, its appurtenances, or the manner of its operation, and if the jury believe from the evidence that by reason of the breach of said duty said Walter B. Gwyn was killed as averred in the declaration, they should find for the plaintiff against those defendants; unless the jury should believe from the evidence that Walter B. Gwyn was himself guilty of negligence which contributed to his death.

"(4)The court instructs the jury that, so far as the defense of contributory negligence is concerned, the burden of proving such contributory negligence rests upon the defendants, unless such contributory negligence was disclosed by the plaintiff's evidence or could be fairly Inferred from the circumstances.

"(5) Even if the jury should believe from the evidence that Walter B. Gwyn was himself guilty of negligence in attempting to leave the elevator, such negligence on his part will not bar the plaintiff in this suit, if the jury believe from the evidence that after such negligence of Walter B. Gwyn such of the defendants as they may believe from the evidence were engaged as lessees in the actual operation of the elevator, through their servants or employes, by the exercise of reasonable care, could have saved his life.

"(6) If the jury find for the plaintiff, they may award such damages as to them may from the evidence seem fair and just, not exceeding $10,000, and they may direct in what proportion the damages shall be distributed to the widow and children of Walter B. Gwyn, deceased.

"(7) If the jury find that the plaintiff is entitled to recover, they may find against those defendants who were, at the time of the accident, the lessees of the Dickson building and engaged in the actual operation of the said building by themselves or through their agents."

The following instructions were refused to defendants:

"(1)The court instructs the jury to find a verdict in favor of the defendantsR. A. Wainwright and Charles McI.Tunstall, no evidence of any negligence on their part having been introduced.

"(2)The court instructs the jury to find a verdict for the defendants the Real Estate Trust & Insurance Company, Incorporated, Robert A. Wainwright, and Charles McI.Tunstall, no evidence of any negligence on their part having been introduced.

"(3)The court instructs the jury that if they believe from the evidence that up to the time when the plaintiff's intestate attempted to leave the elevator there had been no negligence in the operation or maintenance of the elevator in question, and that when the elevator boy saw that the said deceased in attempting to leave the same would be caught and greatly injured, and that in consequence of the excitement of the moment he adopted measures which were injudicious in the result or failed to adopt measures which might have been more effective in preventing the accident, they are instructed that such action of his under the circumstances would not constitute negligence.

"(4)The court instructs the jury that, if they believe from the evidence that when the plaintiff's intestate started to leave the elevator the car was in motion and by so doing was killed, he was guilty of contributory negligence, and the plaintiff cannot recover in this action, and the jury must find for the defendant, even though they may believe that the defendant was guilty of negligence.

"(5)The court instructs the jury that if the plaintiff's intestate attempted to leave the elevator when the door had been only partially opened, and while the elevator was moving and by so doing he was killed, he was guilty of contributory negligence, and the plaintiff is not entitled to recover in this action, and the jury must find for the defendants, even though they may believe that the defendants were guilty of negligence.

"(6)The court further instructs the jury that it was negligence on the part of theplaintiff's intestate for him to attempt to leave the elevator while the same was in motion, or when the door had been only partially opened, and if he did either, whereby he was killed, he was guilty of contributory negligence, and the jury must find for the defendants, even though they may believe that the defendants were guilty of negligence."

The following instructions, requested by defendants, were given:

"(A) The jury is instructed that the owner of the premises, who operates therein an elevator for the accommodation of the tenants of such premises and others having business therein, is bound only to the exercise of ordinary care to provide reasonably safe equipment and operation, and, if they believe from the evidence that the defendants in this case exercised such care in the equipment and operation of the elevator in question, they will find for the defendants.

"(B)The court instructs the jury that if they believe from the evidence that the Courtney Realty Corporation was, at the time of the accident which resulted in Mr. Gwyn's death, the lessee, of record, of the Dickson building, and that as lessee of the building it assumed control of it, and at the time of the above accident was actually operating the building in pursuance of the assignment of the lease from R. A. Wainwright, Charles McI.Tunstall, and the Real Estate Trust & Insurance Company, Incorporated, to the Courtney Realty Corporation, and that the Real Estate Trust & Insurance Company was only employed and empowered to collect the rents of the building as a regular rental agent, and Wainwright and Tunstall did not control or conduct the building and elevator, then they, the jury, must find for the Real Estate Trust & Insurance Company, Incorporated, and R. A. Wainwright and Charles McI.Tunstall, although they may believe that the same parties are interested in both corporations, and that the same identical interests control both corporations."

The following instructions, requested by defendants were only given as modified, parts omitted by the court being in brackets, and additions by the court being in italics:

"(C)The court...