Scott v. Instant Parking, Inc.

• Decision Date: 15 October 1968
• Docket Number: Gen. No. 52527
• Citation: 241 N.E.2d 517,100 Ill.App.2d 293
• Parties: William SCOTT, Plaintiff-Appellee, v. INSTANT PARKING, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 517

241 N.E.2d 517

100 Ill.App.2d 293

William SCOTT, Plaintiff-Appellee, v. INSTANT PARKING, INC., Defendant-Appellant.

Gen. No. 52527.

Appellate Court of Illinois, First District, Second Division.

Oct. 15, 1968.

Rehearing Denied Nov. 8, 1968.

Sydney W. Hollander and Donald J. Seeley, Chicago, Branko M. Steiner, Chicago, of counsel, for appellant.

Peter Fitzpatrick and George Kaye, Chicago, Jesmer & Harris, Fitzpatrick & Kaye, Chicago, of counsel, for appellee.

BURKE, Presiding Justice.

This was an action to recover for personal injuries sustained by plaintiff when he was struck in the head by a descending elevator operated by an employee of the defendant. The jury returned a verdict in favor of plaintiff and assessed damages in the amount of $21,000 and judgment was entered thereon. The jury also answered, all in the affirmative, special interrogatories questioning whether defendant was guilty of ordinary negligence, whether defendant was guilty of wilful and wanton misconduct, and whether plaintiff was guilty of contributory negligence.

Defendant prosecutes this appeal, maintaining that the jury's verdict is against the manifest weight of the evidence; that plaintiff was guilty of contributory wilful and wanton misconduct; that the trial court committed error by allowing evidence of other accidents involving the elevators in defendant's building to be presented to the jury without requiring the plaintiff to establish the conditions under which they occurred; and that the trial court erred with respect to the giving of certain instructions to the jury. Defendant raises no question as to the amount of damages awarded by the jury.

The mishap occurred on June 16, 1960 on premises occupied and employed by defendant as an automobile parking garage in Chicago. The evidence shows that the garage building is a multiple story structure serviced by three large elevators for the movement of automobiles between floors. The elevators were manually operated by employees of the defendant. Plaintiff's employer, the Checker Taxi Company, stored a number of its inoperable taxi cabs on several of the upper floors of the building, and on the date in question plaintiff and a crew of five other men were dispatched to the garage to get two cabs out of storage. The procedure to be followed by plaintiff in securing the cabs was to have been the same as that employed in the past, namely, plaintiff and his crew would be carried to the desired floor of the garage in one of the building's elevators operated by defendant's employee. The elevator operator would drop the men off at the floor where they would secure the cabs desired and ready them for removal from the building. When the cabs were in position to be lowered to the ground floor, plaintiff was to shout down the elevator shaft to summon the elevator; no other call system was provided for this purpose. The plaintiff, his crew and the taxi cabs were then to be lowered to the ground floor.

There is evidence that, when the elevator containing plaintiff and his crew reached the desired floor, the elevator shaft doors to the floor were partially open and the elevator operator opened them the rest of the way to let plaintiff and his crew out of the elevator. The shaft doors operate in a vertical manner, half of the door moving upward and the other half moving downward. There is also evidence that after plaintiff and his crew alighted from the elevator, the elevator operator closed the shaft doors but that they rebounded partially open again.

The floor on which the cabs were stored was poorly lighted and flashlights were used to secure the desired cabs, which were then brought to the elevator shaft for removal to the ground level. The shaft doors were partially open, as previously noted, and, in accordance with the prior instructions of the elevator operator, plaintiff shouted into the shaft to summon the elevator to the floor. The evidence is conflicting as to the noise level in the building, the elevator operator testifying that it was quiet whereas other witnesses testified that there was a great deal of noise from automobile horns, automobile and equipment motors, slamming and banging doors, and the like. Several minutes passed and plaintiff called into the shaft a second time. After waiting approximately 20 minutes from the time he first called, plaintiff observed a light descend in the darkened elevator shaft and approached the shaft to call a third time. As he leaned forward to call, the back of plaintiff's head was struck by the descending elevator, forcing his forehead against the lower portion of the shaft doors. Plaintiff's body was flipped into the elevator cage and he sustained substantial and severe injuries requiring extended hospitalization and medical attention. During the entire period from the time his head came into contact, with the elevator until he was hospitalized, plaintiff did not lose consciousness.

The evidence is uncontradicted that the construction of the three elevators is such that the elevator is inoperable when the elevator shaft doors are open. Each elevator, however, is equipped with a 'by-pass' device which, if activated, permits the elevator to function when the shaft doors are open. A City of Chicago ordinance restricts the use of the 'by-pass' button solely to emergency operations.

The elevator operator denied having employed the 'by-pass' device on the date of plaintiff's injury. He testified that the elevator did not stop automatically when plaintiff was struck, but that it was brought to a halt by the operator's affirmative action. Plaintiff testified that the operator stated immediately after plaintiff's body had been flipped into the elevator cage, 'They told us to run with these doors open.' The elevator operator denied making that statement and testified that he at that time stated to plaintiff that he previously told him to keep his head out of the elevator shaft.

A City of Chicago Building Department elevator inspector testified that effecting a continuous use of the 'by-pass' device was a simple, five-minute operation. It consisted of removing four screws and a faceplate covering the button, wedging the button with a piece of cardboard or the like, a process called '...