TA Pittman, Inc. v. La Fontaine, 7140.

• Citation: 68 F.2d 469
• Decision Date: 15 January 1934
• Docket Number: No. 7140.,7140.
• Parties: T. A. PITTMAN, Inc., v. LA FONTAINE.
• Court: U.S. Court of Appeals — Fifth Circuit

68 F.2d 469 (1934)

T. A. PITTMAN, Inc., v. LA FONTAINE.

No. 7140.

Circuit Court of Appeals, Fifth Circuit.

January 15, 1934.

James A. Leathers, of Gulfport, Miss., for appellant.

S. C. Mize, of Gulfport, Miss., for appellee.

Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the appellee against his employer, the appellant, which was a sub-contractor engaged in constructing a building, to recover damages for personal injuries sustained by the appellee while he was attempting to comply with an order of a superior, to whose orders he was subject, to go from where he had been working as a carpenter's helper on the third floor of the building under construction to a place above that floor for the purpose of there assisting in raising and setting a bucket or hopper which was to be used in pouring concrete on the fourth floor of the building. The injuries resulted from an elevator descending and striking the appellee while he was inside the elevator shaft in the act of climbing up its side towards the place to which he had been ordered to go. The appellee's declaration attributed his injuries to negligence of the appellant in failing to provide appellee a reasonably safe way to get to the place of work to which he was ordered, in having the machinery which propelled the elevator located at a place where the view of the operator of that machinery, an employee of the appellant, was so obstructed that he could not see one inside the elevator shaft, in failing to notify the appellee that the elevator was in use at the time the above mentioned order was given, and in failing to provide means of giving warning when the elevator was going to move.

The appellant put in issue the allegations of appellee's declaration and set up grounds of defense which are indicated below. Upon the conclusion of the evidence, the appellant moved the court to direct a verdict in its favor, and assigned as grounds supporting that motion: (1) That the undisputed proof showed that the danger of climbing up the elevator shaft on the inside was as obvious and apparent to appellant as it was to appellee, and that appellant was under no duty to warn appellee of that danger; (2) that the undisputed proof showed that appellee had reasonably safe ways, provided by the appellant, of getting to the place to which he was ordered, by using a ladder inside the building, or by climbing up the elevator shaft on the outside thereof, and that appellee voluntarily chose a dangerous method; and (3) that the undisputed proof showed that when appellant was injured the elevator, the machinery which propelled the elevator, and the operator of that machinery were under the exclusive direction, control, and management of another named independent contractor on the job, for whose acts or negligence the appellant was not responsible. The court denied that motion. That ruling is the sole ground relied on for a reversal of the judgment in favor of the appellee.

The elevator shaft was part of a tower or structure provided by the appellant for the operation of an elevator intended for use in hoisting materials to be used in constructing the building, upon which employees were not permitted to ride, another and adjoining part of that...