Siegel, Cooper & Co. v. Trcka

• Decision Date: 20 December 1905
• Citation: 75 N.E. 1053,218 Ill. 559
• Court: Illinois Supreme Court
• Parties: SIEGEL, COOPER & CO. v. TRCKA.

218 Ill. 559

75 N.E. 1053

SIEGEL, COOPER & CO.

v.TRCKA.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Appellate Court, First District.

Action by Frank Trcka against Siegel, Cooper & Co. From a judgment of the Appellate Court (115 Ill. App. 56), affirming a judgment for plaintiff, defendant appeals. Affirmed.Charles E. Pain and Frank M. Cox, for appellant.

A. M. Johnson, Charles Veseley, and Beach & Beach, for appellee.

RICKS, C. J.

This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county in favor of appellee for $1,500 for injuries received by appellee on October 25, 1901, while in the employ of appellant, and while riding upon an elevator in the building occupied by it.

The appellee, at the time of his injury, was 14 years of age, and had been in the employ of appellant about two months. The appellant conducted a department store in Chicago, occupying an eight-story building, in which elevators were maintained and operated for the use of the employès in ascending and descending to and from the various floors in the discharge of their duties. Appellee was engaged in the window-shade department on the seventh floor, and in the performance of his duties was required to use the elevators of the building. On the day in question, and in the performance of his duties he got upon the elevator in question at the fourth floor to ascend to the seventh. The first count of the declaration charges that this elevator ‘was negligently and carelessly constructed and maintained, in that at the entrance on the fourth story of said building to the shaft through which said elevator ran, there was a doorway through the wall or partition (said wall or partition being of the thickness of, to wit, ten inches,) about seven feet in height and about five feet in width, and the door or doors at said entrance,leading to said elevator shaft, were negligently, carelessly and without due regard to the safety of persons using said elevator, placed on the side of said doorway most remote from the platform of the elevator car as it passed through the shaft in going from the fourth to the upper stories of the building. Said door or doors were thereby so separated from the elevator car that an open space of, to wit, ten inches, intervened between the outer edge of the platform of the car and the adjoining floor, which open space, when the car arrived on a level with the floor of the fourth story, was of the height of, to wit, seven feet, and the breadth of, to wit, five feet, and depth of, to wit, 10 inches, the top of said doorway being closed by a solid wood or iron casing of the width of the doorway and the thickness of the wall or partition, by reason whereof a passenger on said elevator, without any fault on his part, might sustain great and serious injury, all of which things the defendant knew or in the exercise of reasonable care might have known. On said day, after the plaintiff had executed the defendant's instructions, it became necessary and proper for him, in returning from the fourth story to the seventh story of the building, to take the elevator at the fourth story for the purpose of ascending to the seventh story. When the elevator, in ascending, arrived at the fourth floor the plaintiff entered it, and was received therein by the defendant's agent who was operating it, for the purpose of being transported to the seventh floor. While the elevator was ascending from the fourth floor, and before it reached the top of the said doorway, and while he was in the exercise of due care and caution for his own safety, another passenger, also an employè in said store, who was riding on said car, negligently, carelessly, wrongfully, and wantonly seized the plaintiff, who was without fault or negligence, and pushed, pulled, and threw him upon the floor of the car, causing his right foot and part of his right leg to extend over and beyond the platform of the car and to extend into the said open space. By reason of the negligent and careless conduct of the defendant in operating and maintaining the elevator with the entrance and door so constructed, said right foot and part of the right leg struck against the upper casing of the doorway with great violence and were caught therein as the elevator was ascending from the fourth floor, and said right foot was crushed, and the flesh pulled and scraped from the right leg and foot, and the muscles and tendons thereof were lacerated, torn, and injured, and he became sick, sore, lame, and disordered,’ etc. Three additional counts were filed, each differing but slightly from the first, and the defendant pleaded the general issue.

Appellant complains that the court refused to direct a verdict in its behalf at the close of all the evidence. We have examined the evidence with care, and are satisfied that there is ample evidence in the record tending to show that appellant was guilty of negligence. It is conceded that appellee was but 14 years of age, and had worked in the store but about two months, and that his work had nothing to do with the elevator in question, except that he was, in the discharge of his duties, required, occasionally, to ride on it while being operated by the man regularly in charge thereof. In view of appellee's age, and the rules of law governing the questions of contributory negligence and assumption of risk in case of minors, it was proper that these questions, should be submitted to the jury for its determination. In support of appellant's contention with reference to this motion, many questions are argued and much space consumed, cases from this court upon the subject of assumed risk, fellow servant, and contributory negligence being printed in the brief in extenso. Such of these as seem to require notice or consideration will be briefly considered.

It is first contended that appellant is not liable in this action because the proximate cause of the injury was the negligent act of the boy who threw appellee upon the floor of the elevator. If, however, appellant was guilty of the negligence charged in the declaration, and without which the injury in question would not have occurred, then it would make no difference, as to its liability, that some act or agency of some other person or thing also contributed to bring about the result for which damages are claimed. Both or either of the contributing agencies were liable for the injury occasioned by their negligence, appellee being without fault and not held to have assumed the risk involved in the improper construction. In the case of McGregor v. Reid, Murdoch & Co., 178 Ill. 464, 53 N. E. 323,69 Am. St. Rep. 332, which also grew out of an elevator accident, we said (page 470 of 178 Ill.,page 325 of 53 N. E. ): ‘Appellee insists that the pulling out of the cable ends from their fastenings was the proximate cause of the injury, and that no recovery can be had for what is supposed to be the remote cause of the accident, the defective condition of the safety device. But this position is clearly untenable. The two causes operated together, and neither, alone, would have caused the elevator to fall, and if the pulling out of the cables was attributed to an accident or to the negligence of a third person, and still the...