Stumpf v. Baronne Building, Inc.

• Decision Date: 16 February 1931
• Docket Number: 13,124
• Citation: 135 So. 100,16 La.App. 702
• Court: Court of Appeal of Louisiana — District of US
• Parties: STUMPF v. BARONNE BUILDING, INC., ET AL

135 So. 100

16 La.App. 702

STUMPF v. BARONNE BUILDING, INC., ET AL

No. 13,124

Court of Appeals of Louisiana, Orleans

February 16, 1931

Rehearing Refused March 23, 1931.

Appeal from Civil District Court for the Parish of Orleans, Division "A." Hon. Hugh C. Cage, Judge.

Action by Dr. Louis Stumpf against Baronne Building, Inc., and Leo Fellman.

There was judgment for defendants and plaintiff appealed.

Judgment reversed and remanded.

Judgment reversed and case remanded.

Wm. W Ogden and Wm. W. Westerman, of New Orleans, attorneys for plaintiff, appellant.

St Clair Adams, of New Orleans, attorney for Baronne Bldg., Inc., defendant, appellee.

Monroe & Lemann and Nicholas Callan, of New Orleans, attorneys for Leo Fellman, defendant, appellee.

HIGGINS, J. JANVIER, J., concurs in the decree.

OPINION

HIGGINS, J.

Plaintiff brings this suit against the Baronne Building, Inc., as the owner and operator of the Baronne Building, and Leo Fellman, as its agent or manager in charge or operator in his own behalf, in solido, to recover damages for personal injuries alleged to have been sustained by him, while a passenger in an elevator in the building. The petition alleges that the plaintiff is a dentist and a tenant in the Baronne Building, with office space on the fifth floor; that there are three elevators installed in the building, the cars of which are not equipped with any gate or door, which, upon being closed, would complete the enclosure of the elevator car and prevent passengers from coming into contact with that portion of the wall of the elevator shaft opposite the doorway of the car; that there are extensions or projections, on the wall of the shaft and on the various floors of the building, opposite the doorway of the elevator car; that on November 20, 1927, at about 12:45 p. m., the petitioner was a passenger in one of the elevators, which was descending from the fifth floor and that another passenger in the elevator car, in attempting to light a cigarette, ignited a box of matches, which he threw from him into the lap of the female operator of the elevator car, who, in turn, negligently and carelessly threw the burning box of matches from her and into the face of petitioner; that, in stepping away from the fire, petitioner slipped, precipitating him beyond the limits of the elevator car doorway, and that he was carried down by the descending car in such a manner that his right hand struck the obstructions or projections on the wall of the shaft beside the unguarded side of the elevator car with great force, causing a fracture of three bones of his right hand; that defendant was guilty of negligence in not in any manner protecting petitioner, as a passenger in the elevator car, by a gate, railing, partition, or bar on the elevator car, from coming into contact with the obstructions or projections on the wall of the elevator shaft, consisting of the top of the gates and rails of the grillwork which projected into the shaft a distance of several inches.

The petition further alleges:

"That the injuries sustained by petitioner were caused solely and proximately by the negligence and carelessness of defendants herein, which said negligence and carelessness is set forth as follows:

"(a) Failure on the part of defendants herein to provide a guard, gate, door, partition, or suitable protection at the entrance to said elevator car.

"(b) The negligence of defendants, their agent or employee, in throwing the lighted box of matches into petitioner's face.

"(c) The violation of its duty of safe carriage owed to petitioner, and its duty to use the utmost care and diligence for the protection of passengers, and its failure to equip said elevator car with the protection and modern equipment with which present-day elevators should be equipped."

Both defendants filed exceptions of no right or cause of action, which were sustained, and from a judgment dismissing the suit the plaintiff has appealed.

The exception of no cause of action is based upon several grounds:

First, that the failure to equip the elevator car with the protecting doors was not the proximate cause of the accident;

Second, that if defendant was negligent in failing to provide the elevator car with a door, the plaintiff had assumed the risk because of his tenancy in defendant's building; and

Third, that the obligation of defendant as owner of the building and operator of the elevator was to exercise ordinary care, and his duty in this respect was fully discharged by the operation of an elevator car without a door.

We shall discuss these issues in the above order.

The first contention concedes, arguendo, that it was negligence on the part of defendant not to have had a guard rail or a collapsible door on the elevator car. It is argued that such negligence was not the proximate but the remote cause of the accident; that the proximate cause of the accident, without which it would not have happened, was the negligent act of the person lighting the cigarette and igniting the box of matches and throwing it into the lap of the elevator operator.

The rule of law is that a party is responsible for the reasonably to be expected consequences of a negligent act, but, where an intervening, independent act of negligence breaks the chain of causation, then the proximate cause is the act of intervening negligence, and not the original act of negligence. This rule, as stated in Weeks on Damnum Absque Injuria, sec. 115, p. 230, and quoted with approval in Moore v. Edison Illuminating Co., 43 La.Ann. 792, 9 So. 433, and in Bemiss v. Railroad Co., 47 La.Ann. 1671, 18 So. 711, 713, is as follows:

"In actions for injuries through negligence, it is a general principle that a person is answerable for the consequences of his negligence only so far as they are the natural and proximate result of the injury, as might have been anticipated by ordinary forecast, and not for those consequences arising from a conjunction of his faults with circumstances of an extraordinary nature."

In this case the alleged intervening act of independent negligence was the throwing of the box of lighted matches, which caused the plaintiff to lurch forward and to engage his hand in the elevator shaft, causing the injury sued for. It is said that the absence of the gate is the remote and not the proximate cause. It would appear to us that it must have been contemplated that the failure to provide a door on the elevator car might reasonably result in some such accident as that experienced by the plaintiff in this case.

In the case of Munsey v. Webb, 231 U.S. 150, 34 S.Ct. 44, 45, 58 L.Ed. 162, the plaintiff sued the owner of a building for causing the death of deceased in an elevator. Negligent construction and management of the elevator were alleged. The elevator car did not quite fill the shaft, and the bottom of the floor of it, which was at right angles, projected right into the shaft about three and one-half inches. The car was equipped with a collapsible door, which was open at the time of the accident. Between the fourth and fifth floors the deceased fell and his head was caught between the projecting bottom of the fifth floor and the floor of the car and was crushed. The court held:

"The plaintiff in error argued at some length that there was no negligence, because the fall of deceased was something wholly out of the ordinary course, and not to be foreseen; or that if there was negligence in any sense, it was not the proximate cause of the death, but merely a passive condition made harmful by the fall. Neither argument can be maintained. It is true that it was not to be anticipated specifically that a man should drop from internal causes into the open door of the car. But the possibility and the danger that in some way one in the car should get some part of his person outside the car while it was in motion was obvious, and was shown to have been anticipated by the door being there. In some circumstances, at least, it was a danger that ought to be and was guarded against. It is said that the danger was manifest only when the car was crowded, and that the door was needed only for that. If the duty to have the car shut on all sides had been created with reference only to conditions different in kind from those of the accident, it may be that the plaintiff could not avail himself of a requirement imposed alio intuitu. The Eugene F. Moran [v. New York Cent. & H. R. R. Co.] 212 U.S. 466, 476, 29 S.Ct. 339, 53 L.Ed. 600, 604. But the accident was similar in kind to those against which the door was provided, and we are not prepared to say, contrary to the finding of the jury, that the duty to keep it shut or to guard the space with the arm did not exist in favor of all travelers in an elevator having the structure that we have described. It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinary prudent eye. Washington & Georgetown R. R. Co. v. Hickey, 166 U.S. 521, 526, 627, 17 S.Ct. 661, 41 L.Ed. 1101, 1103.

"If there was negligence, it very properly could be found to have been the proximate cause of the death. See Milwaukee &amp St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256. Even if it were true that the neglect was merely a passive omission, the deceased was invited into the elevator, and the principle of the trap cases would apply. Corby v. Hill, 4 C. B. (N. S.) 556, 563. Sweeny v. Old Colony & Newport R. R. Co., 92 Mass. 368, 374, 87 Am. Dec. 644. But that is not the case. The defendant is sued for having crushed the head of the deceased by forces that he put in motion. He replies that it would not have happened but for the unforeseen fall of the...