Stukas v. Warfield, Pratt, Howell Co.

• Decision Date: 13 December 1919
• Docket Number: No. 32903.,32903.
• Citation: 175 N.W. 81,188 Iowa 878
• Parties: STUKAS v. WARFIELD, PRATT, HOWELL CO.
• Court: Iowa Supreme Court

188 Iowa 878

175 N.W. 81

STUKAS

v.WARFIELD, PRATT, HOWELL CO.

No. 32903.

Supreme Court of Iowa.

Dec. 13, 1919.

Appeal from District Court, Woodbury County; J. W. Anderson, Judge.

Action at law to recover damages on account of the death of George Stukas, who was fatally injured in an elevator accident in a building owned by the defendant in Sioux City, Iowa. There was a verdict and judgment for the plaintiff, and defendant appeals. Affirmed.C. Woodbridge, of Des Moines, and E. M. Corbett and Sears & Snyder, all of Sioux City, for appellant.

E. G. Smith and Jepson & Struble, all of Sioux City, for appellee.

WEAVER, J.

The defendant was the owner and occupant of a six-story building in Sioux City. In this building defendant installed and was operating two elevators, mainly used for the handling and moving of freight. They were not intended for use as ordinary passenger elevators, but were, in fact to some extent, used by employés and workmen in passing from one floor to another in the course of their employment. On October 20, 1917, one Sulzbach, a contractor, was engaged in making extensive changes and repairs in the interior of the building, and among the employés of Sulzbach in that service was George Stukas. The plan of improvements being made in the building required the cutting of openings through the several floors and this part of the carpenter work was being done, or directed by Stukas. He had worked there several weeks and with others of the workmen made frequent use of the elevators, not only to be carried from one floor to another, but for carrying the necessary tools and materials for their use. An employé of the defendant operated the elevator, which was equipped with automatic gates or guards. They were so contrived that at the basement and the sixth floor the gates would open at the approach of the elevator and close with its departure. At the intermediate floors the gates did not automatically open and close, except when it was desired to stop at such floor, and in such case a pull upon a rope used for that purpose would bring into operation a clutch by which the gate was lifted. If left open, however, all the gates would close automatically with the downward movement of the cage.

That the deceased was injured in the elevator is not denied. There was no eyewitness of the accident, and no one, so far as is known, saw him enter the elevator, or is able to describe the manner or method of his entrance into the cage. He was seen on the fifth floor, going in the direction of the elevator, very shortly before the outcry following his injury was heard. When the alarm was given, a witness at work near the elevator on the sixth floor ran to the shaft where he found the cage lifted nearly to the level of that floor. The deceased lay with his face down upon the cage floor, while one of his legs was caught between the “header” or the edge of the opening into the shaft and the floor of the cage, in such shape as to indicate that he had been lifted from the floor below, and that in the upward movement of the cage his leg had been in some manner drawn into the narrow space between the elevator and the opening through which it operates, crushing and mangling the limb. Subsequent examination also disclosed extensive injuries to the pelvic bones and internal structure of the lower part of his body. An ambulance was quickly summoned, and the unfortunate man removed to a hospital, where within a few hours he died.

The plaintiff, as administrator of his estate, charged that the injury and death of the deceased were the proximate result of the defendant's negligence.

Of the several specifications of negligence, the court submitted to the jury only the plaintiff's allegation that the servants and employés of the defendant carelessly and negligently set the elevator in motion as deceased was entering, or about to enter, the cage. The defendant denies generally the allegations of negligence and alleges that deceased was well acquainted with the elevator and its construction and management and assumed the risk of injury received by him in its use. At the close of the evidence, defendant moved for a directed verdict in its favor because of the insufficiency of the evidence to support a recovery of damages.

The motion was denied and the issues submitted to the jury, which returned a verdict in plaintiff's favor for $5,000, and judgment was entered accordingly. A motion to set aside the judgment and verdict and for a new trial having been overruled, the defendant appeals.

I. Before taking up specifically the points pressed upon our attention in the appellant's argument, it is well to make brief reference to some of the testimony elicited in the trial. For the plaintiff it is shown that one Hanson, an employé of Sulzbach, was at work on the sixth floor about 25 or 30 feet from the elevator, when his attention was attracted by the sound of a fall and a cry from some person, and, running to the elevator, he found it and the injured in the position we have already described, and with the help of others the deceased was released from the cage, and very soon removed to the hospital. This witness had seen the deceased on the sixth floor, going in the direction of the stairway, about 10 minutes before the accident. The injured man seemed to be conscious, but the witness had no talk with him. The elevator was in frequent use and was ordinarily in charge of an operator. From the time the witness discovered the deceased in the cage of the elevator until he was removed to the ambulance was about 10 or 15 minutes. Responding to the call for the ambulance, two witnesses, Hennesy and Meis, arrived. Hennesy says it was a “hurry-up call,” and they went immediately to the building, and “loaded the man in the ambulance and beat it for the hospital.” Describing the condition of the deceased at that time, he says:

“His face was all purple; his eyes were kind of bulged out of his head and real bloodshot. He was conscious. From the time we got the call until we got into the hospital was about 20 minutes. When we got to the hospital, we put him on the elevator and took him up to the operating room immediately. When we took him out of the ambulance, he said the son of a bitch wouldn't stop the elevator when he hollered. * * * I did not ask him anything about the accident when he said that. I don't know who he was talking about. I am giving just what he said. He did not mention any names. I don't know how he came to make the statement. I did not hear him say anything else. Nobody was asking him any questions or talking to him about the matter at all when he made the statement. I think he was conscious from the way he talked.”

The witness Meis tells substantially the same story. Says that Hennesy and he went quickly upon receiving the call, and estimates the time from the call until they arrived with the deceased at the hospital at between 15 and 20 minutes--though he says it might have been between 20 and 25 minutes--and might have been less than 20 minutes. He also corroborates Hennesy as to the statement by the deceased that “the son of a bitch wouldn't stop the elevator when he hollered.” On cross-examination, he says the only other words he heard spoken by deceased was as they were taking him up the elevator at the hospital, he said: “Look out for the elevator, boys. Look out for the elevator.” The witness adds, “I cannot say whether he was conscious or unconscious.”

While the deceased was being removed from defendant's building, news of his injury was telephoned to his wife, with word that he was being taken to the hospital, where she at once went, arriving, according to her evidence, in not more than 20 minutes. On her arrival she went at once to the operating room. She swears that her husband there told her “he had been caught in the elevator;” that he “got his foot caught in the elevator, and he called to the elevator man to stop, and he kept right on.” “He did not say how he got his foot caught. He said he called to the elevator man to stop, and he was too frightened, or did not know enough, to stop.” The wife also describes the physical appearance of her injured husband substantially as do the other witnesses above mentioned. On cross-examination the witness says “that on three or four occasions her husband had ‘spells' when he was weak or faint, and on such occasions he laid down about half or three quarters of an hour. He was never unconscious. Would lay down sort of helpless.”

A sister of the deceased, Mrs. Snell, living at the time in the same city, also received a telephone message that Stukas was injured, and, being taken to the hospital, testifies that within 20 minutes she went to the hospital and found her brother on the operating table. She says: “I went up to my brother and laid my hand over his and said to him, ‘I am here, George;’ and he said: ‘Yes, I know you are here, Irene;’ he said he had been hurt in the elevator at Warfield, Pratt, Howell Company's. He said that as he was getting in the elevator they started the elevator, and he caught his foot as he was getting in, and he could not help himself. He said he called to the elevator boy and said, ‘Stop, I am caught.’ But he said the boy seemed to be so frightened he could do nothing, and he got off the elevator and left him alone.”

It should also be said that the testimony of Hennesy, Meis, Mrs. Snell, and Mrs. Stukas, relating to alleged statements of the deceased concerning the cause and manner of his injury, was all objected to as incompetent and not admissible as any part of the res gestæ.

As the physical condition of the deceased from the time of his injury until his death some three or four hours later had a material bearing upon some features of this case, we also quote from the testimony of the surgeon who attended him. He says:

“Mentally, he was apparently in very good shape. He was very blue from about the middle of his chest up and over his...