Sheridan v. Aetna Cas. & Sur. Co.

Decision Date11 April 1940
Docket Number27514.
Citation3 Wn.2d 423,100 P.2d 1024
CourtWashington Supreme Court
PartiesSHERIDAN v. AETNA CASUALTY & SURETY CO.

Action by Bernard L. Sheridan against James R. Stirrat and his wife for injuries sustained in a fall in elevator shaft, wherein the Aetna Casualty & Surety Company and the Moline Elevator Company were by amendment named as additional defendants on the death of the named defendant. The wife was dismissed from the action. From an adverse judgment, the Aetna Casualty &amp Surety Company appeals.

Affirmed.

ROBINSON and SIMPSON, JJ., dissenting.

An instruction that owner of a freight elevator is only required to use ordinary care in installing and keeping elevator in repair and is not required to install any other type of elevator as long as he uses such care as is ordinarily used by owners of other property where freight elevators are in operation, and that if the owner of the building used such care, a liability insurer would not be liable for injuries sustained by person who fell into empty elevator shaft as result of failure to automatic doors to close when elevator was taken to another floor, unless insurer was negligent in some other respect, while seemingly contradictory, was not prejudicial.

Appeal from Superior Court, King County; Roger J Meakim, judge.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for appellant.

John F. Walthew and James W. Mifflin, both of Seattle, for respondent.

GERAGHTY, Justice.

The plaintiff suffered severe injuries by a fall into a freight elevator shaft in the Stirrat building, on Second avenue, in the city of Seattle, and instituted action against the owners of the building, James R. Stirrat and wife, Catherine J., for recovery of resulting damages. James R. Stirrat died after institution of the action, and the plaintiff filed an amended complaint, naming as additional defendants the Moline Elevator Company, under contract with the owners of the building for servicing the elevator, and the Aetna Casualty and Surety Company, which carried a liability policy on the elevator at the time of the accident.

The case was tried to a jury, and, at the close of plaintiff's case, the defendants severally interposed challenges to the sufficiency of the evidence. The challenge of Catherine Stirrat was sustained, and she was dismissed from the action. The cause having proceeded to trial against the remaining defendants, the jury's verdict was in favor of the Moline Elevator Company and against the defendant Aetna Casualty and Surety Company. Motions for judgment notwithstanding the verdict or, in the alternative, for a new trial, made by the defendant Aetna Casualty and Surety Company, having been overruled, judgment was entered on the verdict; and the casualty company appeals.

The respondent was employed by Bart Gagnon, transacting business as Gagnon Displays, Inc., in a shop on the fourth floor of the Stirrat building. A passenger elevator, maintained at the front of the building for the use of the tenants, ceased operations at six o'clock p. m. A freight elevator maintained at the rear of the building, was used by tenants for carrying materials and supplies to and from its several floors. Access to this elevator was had from an alley at the rear of the building, through a double door, parted horizontally. The manner of operating the doors is described by one of appellant's inspectors as follows: 'They are opened by hand and closed by gravity; they automatically close themselves. The top door is a little heavier than the lower one. They are so counter-balanced so when they are released they automatically close and come together. They pull the doors down and there is a catch on the door itself, and this cam (an extension about eight inches long on the bottom of the car) will hold the door open when the car is at the landing. Immediately when the car leaves the landing about four inches that releases this catch, and the doors automatically close. The gates were properly counter-balanced on the various times I inspected that elevator up to August, 1936. If they were overweighted, they would come together with a slam and would be liable to hurt somebody. I did find them when they did not close properly; they had been jammed or got out of line. When they get out of line a little bit they would bind in the guide. The guides are on the sides in which they slide up and down. If the gate was bent out of line it would bind on one or maybe both sides. When I found that condition within possibly a few minutes I got in touch with the building owner or some one in authority and reported to them. I couldn't say if I examined these elevators in August shortly Before the accident. I inspected them every three months.'

No operator was maintained on the elevator, its movement being controlled by means of a cable operated by hand.

At about six o'clock, on the afternoon of August 19, 1936, the respondent and his employer, Gagnon, left the Stirrat building by the freight elevator, intending to have supper at a near-by restaurant and thereafter return to the shop on the fourth floor. They left the elevator at the alley level, the doors being open, and drove to the restaurant in Gagnon's car. The respondent finished his meal about twenty minutes after six and left to drive his employer's car to the alley.

He parked his car, facing north, on the east side of the alley, opposite the building and somewhat north of the elevator entrance; then walked across the alley and south to the entrance, turned to the right and stepped into the shaft, falling some twenty-five feet and sustaining the injuries for which he seeks to recover damages. The elevator cage was then at an upper floor, the reasonable inference, of course, being that it had been moved upward during his absence, and that the automatic closing device failed to function.

The day was clear, and the sun did not set until 7:16 p. m., according to government meteorological reports. The respondent testified:

'I parked the car and crossed over and down the alley, and turned into the elevator entrance, and looked, and I thought I saw the elevator there, and stepped on and it wasn't the elevator. * * *
'Q. Did you observe what position the doors were in? A. The doors were open.
'Q. Partly open or wide open? A. No, sir; they were wide open.
'Q. What else did you see--can you tell us what else you saw as you came up to the elevator? In other words, tell us the picture as it looked to you at that time. A. I couldn't give you any particular point that I saw in there, except the picture as a whole registered with me it was--that the elevator was there.'

On cross-examination, he testified that he could not name any particular thing he saw in the shaft that lead him to believe the elevator platform was there; that the 'picture as a whole' made it appear to him that it was.

'I don't know that I particularly saw the cables.

'Q. Did you see anything in the shaft that indicated to you--any one thing that indicated to you--that platform was there? A. No one particular object. * * *

'Q. Now this was broad daylight when you returned to the elevator, wasn't it? A. It was daylight, yes, sir. * * *

'Q. Well, did you look to see if the elevator platform was there? A. Yes, I looked, and I had the impression it was there.

'Q. You didn't give it a very good look, did you? A. I didn't stop to examine it, no.

'Q. When you walk up to an elevator do you not look to see what you are going to step on Before you step into an elevator shaft--do you not do that any time you get into any elevator? A. Not if the doors are open and the elevator appears to be there I don't bother to look at the floor--I step on.

'Q. A freight elevator where you know there is no operator, you do that? A. Yes.'

Gagnon, who left the restaurant some ten minutes after the respondent, testified, on cross-examination, that it was daylight when he returned to the alley entrance, around 6:30. He believed the sun was down, but was not sure. It was a bright day. When he walked up to the elevator shaft, he had no trouble in seeing that the elevator doors were open and the elevator platform was not at the alley level. 'I approached the door at almost right angles to it. When I walked up to the elevator door I was almost opposite to it when I started to go to the elevator.' There was no artificial light in the shaft. The cage carried an electric light at the top, and there is some conflict in the evidence as to its sufficiency. At any rate, as the cage was above the alley level, it could not have lighted the shaft below.

Respondent testified that the elevator cage had the shape of an open-ended basket, with a platform in between, the sides being protected by a wire grill or netting. On approaching the elevator shaft at the alley level, when the doors were open, one would see the same blank wall at the rear whether the elevator was at that level or not. There was evidence tending to prove that the alley doors were of such construction that they were insufficient for their intended uses, and that, during a considerable period preceding the accident, they had frequently failed to close automatically as the elevator was moved from the alley level.

The errors assigned by the appellant for reversal of the judgment are grouped under two heads: First, those involving the sufficiency of the evidence to sustain the judgment; and secondly, those based upon the improper reception of evidence and the giving of faulty instructions. Under the first group of assignments, the appellant contends: (a) That the respondent has no rights under the liability policy; (b) that appellant is not liable by reason of its inspection of the elevator in the Stirrat building, pursuant to...

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