Rogers v. Lurye Furniture Co.

• Decision Date: 11 January 1927
• Parties: ROGERS v. LURYE FURNITURE CO.
• Court: Wisconsin Supreme Court

193 Wis. 496

211 N.W. 782

ROGERS

v.LURYE FURNITURE CO.

Supreme Court of Wisconsin.

Jan. 11, 1927.

Appeal from Circuit Court, Douglas County; W. R. Foley, Judge.

Action by Helen H. Rogers, executrix of the will of Harrie Rogers, deceased, against the Lurye Furniture Company. From judgment for plaintiff, defendant appeals. Judgment modified, and as modified affirmed.--[By Editorial Staff.]

Death by wrongful act. This is an action by the administratrix under the statute for damages for death by reason of a wrongful act. The case was tried before a jury, and the jury found for the plaintiff on a special verdict, and judgment was entered thereon in favor of the plaintiff for $12,209. The defendant appealed, and assigns as errors: That the court erred in refusing to grant the motion of the defendant for a directed verdict; in refusing to grant the motion of the defendant for judgment notwithstanding the verdict; in failing to grant the motion of the defendant to set aside the verdict and for a new trial because the verdict was contrary to law; and in failing to grant motion of defendant to set aside the verdict and for a new trial.Hanitch, Hartley & Johnson, of Superior, for appellant.

Powell & Sprowls, of Superior, for respondent.

CROWNHART, J.

Harrie Rogers, a man 70 years of age, in good health, active, but of a nervous temperament, entered the furniture store of the appellant to purchase some furniture. He made known his wants to one Wachsmuth, an employee of the appellant, who led him to the elevator shaft with the intention of going on the elevator from the first floor to the third floor of the building, where the furniture was located. Wachsmuth proceeded to the shaft slightly ahead of Rogers and to his right. The elevator was at the third floor. As he approached the elevator shaft, Wachsmuth opened the door and reached in with his left hand to pull the elevator cord which would bring the elevator to the floor where he was standing, and at the same time, with his right hand, he pushed a button to ring a bell to notify any one on the floor where the elevator was stationed that it was about to move. At one time, Wachsmuth testified that he opened the door from 12 to 15 inches, and at another time he testified that he opened it from 15 to 18 inches, and that the door stopped at that point. He further testified that while he was in the act of ringing the bell and about to pull the elevator cord, he heard Rogers strike the pit of the elevator, and then found that he had fallen through the open door down the shaft to the pit. From this fall Rogers received injuries resulting in his death three days later. He was unconscious when found in the pit, but regained semiconciousness for much of the time until his death. The jury found that Wachsmuth failed to exercise ordinary care in not warning the deceased that the elevator was not not at the landing at the time he opened the elevator door; that such failure to exercise ordinary care was a proximate cause of the accident; that the appellant failed to exercise ordinary care in not having the elevator shaft lighted; that such failure to exercise ordinary care was a proximate cause of the accident; that there was no want of ordinary care on the part of the deceased which proximately contributed to cause his injury, and assessed the damages of the widow at $10,000, and damages to the estate in the sum of $509 for expenses, and $8,500 for pain and suffering.

The trial court changed the finding of the jury that the defendant failed to exercise ordinary care in not having the elevator shaft lighted, and that such failure was a proximate cause of the accident, from the affirmative to the negative, and reduced the damages on account of pain and suffering from $8,500 to $2,000, and entered judgment accordingly.

[1] It is contended on behalf of the appellant that the evidence failed to sustain the verdict in finding that the appellant was guilty of negligence, and in failing to find that the deceased was guilty of contributory negligence. The evidence seems to make this a borderline case, and presents a close question both as to the negligence of the defendant and as to the contributory negligence of the deceased. Rogers was more or less familiar with the building, and he had passed up and down this elevator several times before. It does not appear, however, that he had ever approached the elevator as a passenger prior to the time of the accident, when the elevator was not at the floor from which he approached it. The elevator was operated by electricity. It did not have a regular attendant, but different employees of the appellant operated it as occasion demanded. The elevator was in a part of the building where it was not very light. The shaft had no lights, and as parties approached it, their backs would be toward the light and their vision into the shaft somewhat obscured. It appears that the elevator door was ordinarily opened by the use of a key, but it could be opened by giving a hard pull on a chain attached to the door. On the occasion in question, Wachsmuth opened the door by pulling on the chain and shoving the door back with his right hand. If the door stopped, as he testified, when open from 12 to 18 inches, his body would practically close the opening as he turned to pull the elevator cord. If, as it is claimed, Rogers further opened the door, it would be strange indeed that he could do so in such a short space of time and without the knowledge of Wachsmuth, who neither heard, saw, nor knew that...