Snorgrass v. Sears, Roebuck and Co.

• Decision Date: 01 March 1960
• Docket Number: No. 12775.,12775.
• Parties: Mildred SNORGRASS, administratrix with will annexed of the estate of Edward B. Goldthwaite, deceased, Plaintiff-Appellee, v. SEARS, ROEBUCK AND CO., a New York corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

275 F.2d 691 (1960)

Mildred SNORGRASS, administratrix with will annexed of the estate of Edward B. Goldthwaite, deceased, Plaintiff-Appellee, v. SEARS, ROEBUCK AND CO., a New York corporation, Defendant-Appellant.

No. 12775.

United States Court of Appeals Seventh Circuit.

March 1, 1960.

Burton Y. Weitzenfeld, Chicago, Ill., Edward J. Kahn, Chicago, Ill., for appellant.

O. L. Houts, Chicago, Ill., Raymond G. Barnett, Kansas City, Mo., for appellee.

Before SCHNACKENBERG and KNOCH, Circuit Judges, and MERCER, District Judge.

SCHNACKENBERG, Circuit Judge.

Mildred Snorgrass, administratrix with will annexed of the estate of Edward B. Goldthwaite, deceased, brought this action against Sears, Roebuck and Co., a corporation organized under the laws of New York, under the Wrongful Death Act of Illinois, § 1 et seq., ch. 70, R.S.Ill., 1955. An answer and an amendment thereto having been filed by defendant, the case was tried in the district court without a jury. The court entered findings of fact and conclusions of law, found the issues in favor of plaintiff and entered judgment for $20,000 and costs against defendant, which has appealed.

Decedent, an engineer, was one of three employees sent by the Marley Company on Saturday, May 28, 1955, to repair the cooling tower on the roof of defendant's building known as the Administration Annex in Chicago. No business was being conducted in the building at the time.

Defendant's assistant fire marshal assigned one Kalinowski as an escort. He led the men to a freight elevator where he took a key hanging on the wall and opened the doors, replaced the key, turned on the elevator light, admitted the men, closed the doors and placed the elevator in motion by pulling the cable. When the elevator was level with the fifth floor the escort stopped it by taking hold of the cable, and then he opened the doors. Leaving the doors open Kalinowski led the men into a stairwell, then into a fan room, which opened onto the roof where the cooling tower was located. The escort advised that when the men went to lunch, or came and went, they could come and go the same way.

The elevator was what is known as a rope geared hydraulic elevator, which is placed in motion when the operator pulls a rope or cable. It is stopped by the operator taking hold of the rope or cable. When the elevator is stopped at a floor it is necessary that it be centered by lining up the yellow marker on the rope with the yellow marker on the wall, which places the elevator in neutral at floor level. This is necessary to prevent its creeping upward or downward. This is not due to any defect in the elevator but is a characteristic of the type of elevator involved. In establishing the neutral position, there is a leeway of about four inches.

At about noon the three men went out for lunch. In doing so they first went to the elevator in question on the fifth floor but found the doors closed and they used the stairway to the first floor. Upon their return from lunch, they went to the same elevator on the first floor. Masterson, one of the men, took the key from the wall, opened the doors, replaced the key, turned on the elevator light, admitted the three men, closed the doors, operated the elevator to the fifth floor, stopped it there, opened the doors, and left them open as the three men left the elevator and went to their work.

At about 6 P.M., Masterson and deceased quit work and walked through the dimly lighted building to the freight elevator location on the fifth floor. They were able to see that the doors were open as they were when they left the elevator after lunch. Deceased, while bracing himself on the door jamb, felt for the elevator with his left foot, overbalanced and fell to his death in the shaft. The elevator had risen above the fifth floor without the knowledge of the deceased.

Among other things, the district court found that the deceased exercised due care for his own safety at and immediately prior to the occurrence, and was an invitee of defendant; that the defendant negligently failed to exercise reasonable care for decedent's safety, failed to warn him of defects in defendant's premises, failed to keep the premises used by deceased in safe condition; and thereby directly and proximately caused the death of deceased.

When a case is tried without a jury, this court will not ignore the trial court's findings of fact unless they are clearly erroneous, 28 U.S.C.A. rule 52(a). See Lichter v. Goss, 7 Cir., 232 F.2d 715, 719.

It was a reasonable inference from the evidence in this case that the absence of the elevator from the fifth floor at the time of decedent's fatal fall was due to creeping, because there was no evidence of any other cause. In any event the drawing of reasonable inferences from the evidence was peculiarly the function of the district court. In Central Ry. Signal Co. v. Longden, 7 Cir., 194 F.2d 310, 317, we said:

"* * * His is the primary function of finding the facts and choosing from amongst conflicting factual inferences those which he considers most reasonable. Even where there is no dispute about the facts, if different reasonable inferences may be fairly drawn from the evidence, we are forbidden to disturb the findings based on such inferences unless they are clearly erroneous. Gaytime Frock Co. v. Liberty Mut. Ins. Co., 7 Cir., 148 F.2d 694, 696. See also Hanock v. Eck, 7 Cir., 183 F.2d 632, 635; Moths v. United States, 7 Cir., 179 F.2d 824.

"Realizing these limitations upon our functions, we have examined in detail the record submitted in this appeal and, after such examination, find it devoid of anything that would justify us in saying that the findings are erroneous. * * *"

Defendant owed a duty to decedent, an invitee on its premises, to use due care for his safety, Calvert v. Springfield Electric Light & Power Co., 231 Ill. 290, 293, 83 N.E. 184, 14 L.R.A.,N.S., 782, and particularly to inform him of the creeping action which was characteristic of this type of elevator and which could be overcome only by stopping it in a position where the corresponding marks on the cable and the wall were not more than four inches apart.

For the reasons hereinbefore set forth, the judgment of the district court is affirmed.

Affirmed.

MERCER, District Judge (dissenting).

I regret that I cannot agree with the result reached in the majority opinion.

Upon the basic facts in this case which are not in dispute, I would hold as a matter of law that decedent was guilty of contributory negligence and that judgment should have been entered for defendant. Since the evidentiary facts are not in dispute, "we are free to consider them and to reach our own conclusions, untrammeled by the District Court's findings of fact and conclusions of law." Wigginton v. Order of United Commercial Travelers, 7 Cir., 126 F.2d 659, 661, certiorari denied 317 U.S. 636, 63 S.Ct. 28, 87 L.Ed. 513; Fahs v. Taylor, 5 Cir., 239 F.2d 224, 226, certiorari denied 353 U.S. 936, 77 S.Ct. 812, 1 L.Ed. 2d 759; Casey v. C.I.R., 2 Cir., 267 F.2d 26, 30-31.

As I interpret Illinois law, it is immaterial whether decedent was an invitee with respect to use of the elevator or a licensee only.¹ Under the more stringent invitee rule of duty, defendant's duty to decedent was to have its premises in reasonably safe condition and to have warned decedent of any latent danger therein which was not known to him. Geraghty v. Burr Oak Lanes, 5 Ill.2d 153, 125 N.E.2d 47, 49; Brett v. Century Petroleums, Inc., 302 Ill.App. 99, 23 N.E.2d 359. If decedent had knowledge of the danger which engulfed him, either from defendant's warning or from his own observations, and, notwithstanding that knowledge, placed himself in a position of peril which proximately caused, or was a contributory cause of, his death, he is chargeable with contributory negligence as a matter of law. Geraghty v. Burr Oak Lanes, supra; Brett v. Century Petroleums, Inc., supra. See Cleary v. Indiana Beach. Inc., 7 Cir., 275 F.2d 543, and cases cited.

If it be assumed that decedent was an invitee with respect to his use of the elevator there is a paucity of evidence to prove invitation — he is chargeable with knowledge of the danger which cost him his life and with action, notwithstanding that knowledge, which constituted a negligent, or even reckless, disregard for his own safety. The undisputed facts as summarized below can lead to no other conclusion in my opinion.

Decedent was an engineer and was one of three employees sent by Marley Co., on May 28, 1955, to repair the cooling tower on the roof of defendant's Administration Annex Building in Chicago. No business was being conducted in the building by defendant on that day. Decedent and his fellow Marley employees had been advised of that fact and were advised that the repair work was scheduled for a time when defendant's employees would be absent from the building. Decedent with the other two Marley employees sought to enter defendant's Administration Building in the early morning on May 28. They were stopped by a guard who advised them that he had no knowledge of their authority to enter the premises. The guard directed them to go into the office of defendant's fire marshal. The three men then left the Administration Building and walked to...