Taylor v. Du Pont Building Corporation, a Corporation of State
| Decision Date | 08 November 1916 |
| Citation | 99 A. 284,29 Del. 277 |
| Court | Delaware Superior Court |
| Parties | ETHEL W. TAYLOR v. DU PONT BUILDING CORPORATION, a corporation of the State of Delaware |
Superior Court, New Castle County.
SUMMONS CASE, No. 88, March Term, 1915.
On error, in Supreme Court, No. 4, June Term, 1916.
Action by Ethel W. Taylor, widow of Herbert S. Taylor, against Du Pont Building Corporation, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant corporation. Plaintiff claimed in her narr damages for loss of support and for loss of consortium.
Directed verdict for defendant. Motion for new trial. Denied. Plaintiff brings error. Affirmed.
The undisputed testimony was substantially as follows: That about three o'clock in the afternoon of February 8, 1915, Herbert S. Taylor, the plaintiff's husband, was employed and had been for two years, as a helper for T. Brothers, haulers of freight in the City of Wilmington, and was at the time assisting Z. and Q. also employed by said haulers, in delivering certain cases or boxes measuring one foot in the shortest dimension, three to three and a half feet wide and about four feet high, to the Atlas Powder Company, whose offices were located on the second floor of the Du Pont Building. That they had backed up their wagon to the vestibule leading to the freight elevator on the western side of the Du Pont Building, and had taken three of the cases from the wagon through the vestibule and placed them in the elevator, which was operated by one D., an employee of the defendant company; that when the cases had been placed in the elevator and the three men had entered the same either D., the operator, closed the elevator doors or the same were closed by one of the three at the operator's request, and the elevator proceeded to the second floor where the cases were unloaded, and the three men returned in the elevator to the vestibule. That upon their return they found that their team or wagon had been moved away from the elevator vestibule by employees of the F-M. Co., who had placed on the vestibule platform certain chairs and a desk preparatory to taking same up to the seventh floor of the Du Pont Building on the elevator. That the driver who was delivering the cases to the Atlas Company remonstrated with the F-M. employees about moving his wagon before he had unloaded all of his cases and proceeded to back his team up towards the elevator vestibule, the F-M. employees in the meantime placing their furniture in the elevator and taking it to the seventh floor. That while the team was being backed the cases were standing on edge toward the front part of the wagon body which was, including the tailboard, about fourteen feet long; that Taylor was standing in the vestibule leading to the elevator either near the west wall or leaning against said wall and about central between the outer edge of the vestibule and the elevator shaft, with his back toward the elevator shaft looking towards the wagon as it backed up. That the platform or vestibule in which Taylor stood occupied a space of about seven by ten feet, with solid brick walls on the north and south sides, the vestibule doors which were open back against said walls, being located on the west or front and to the rear, or east, was the elevator shaft; that the doors of the elevator when open overlapped the open vestibule doors; that at no time after coming down from the Atlas Powder Company in the elevator did Taylor look in the direction of the elevator shaft. That in backing the wagon one of the cases started to topple over towards the rear and the driver called to Taylor "Look out Red," just as the case fell in the wagon the end being within a few feet of the tailboard; that Taylor backed in the direction of the elevator shaft, the doors of which were open, and fell down the elevator shaft, from which he was later removed and taken to the Delaware Hospital where he died from the injuries received within a few hours thereafter.
It was not affirmatively shown that Taylor had ever been in the elevator before the day of the accident. It was also testified that the elevator vestibule was sufficiently light to distinguish the features of a person, and light enough for Z. when standing several feet away on the outside to see through the vestibule and to observe that the elevator doors were open.
Mr. Richards, at the conclusion of plaintiff's testimony, moved for a nonsuit, on the ground that the evidence of the plaintiff discloses clearly that the decedent was not, at the time when the accident occurred, in the exercise of due care and caution, but was guilty of contributory negligence, citing Dreier v. McDermott, 157 Iowa 726, 141 N.W. 315, 319, 50 L. R. A. (N. S.) 566; Coleman v. Smith Co., 30 R. I. 250, 74 A. 915, 916; Saunders v. Smith Realty Co., 84 N. J. Law, 276, 86 A. 404; Neylon v. Phillips, 179 Mass. 334, 60 N.E. 616; Casey v. City of Malden, 163 Mass. 507, 40 N.E. 849, 47 Am. St. Rep. 473; Patterson v. Hemenway, 148 Mass. 94, 19 N.E. 15, 12 Am. St. Rep. 523; City of Peoria v. Adams, 72 Ill.App. 663, 668.
Mr. Knowles, for plaintiff, contended that the evidence clearly showed that the defendant was guilty of gross negligence on its part in converting a place which the deceased had a right from his knowledge and experience to assume was a safe place, into one of great danger which negligence was the proximate cause of the decedent's injuries and death, and that there was no evidence that showed that the decedent was not in the exercise of due care at the time of the accident.
Verdict for defendant.
W. W. Knowles for plaintiff.
Robert H. Richards and Aaron Finger for defendant.
OPINION
We have very carefully considered the arguments of counsel for and against the motion for a nonsuit, in connection with the evidence in the case, and we are now prepared to announce our decision.
Negligence is the gist of this action brought by the plaintiff to recover damages for the death of her husband. Before she is entitled to recover, it is necessary for her to both allege and prove that the negligence of the defendant was the cause of the accident which resulted in her husband's death. Contributory negligence of the deceased when it appears from the evidence in behalf of the plaintiff, or when proved by the defendant, will defeat the plaintiff's right of recovery.
It is a well settled principle of law in actions for personal injuries such as this, that a motion for a nonsuit will be granted when it affirmatively appears, from the evidence produced by the plaintiff, that the deceased was guilty of negligence at the time of the accident which proximately contributed thereto.
It is also a principle of law that the deceased is presumed to have been in the exercise of due care at the time of the accident. This is a presumption, however, which may be rebutted by evidence introduced by the plaintiff, as well as by evidence introduced by the defendant.
Applying these well settled principles of law to the evidence of the present case, the court are clearly of the opinion that t e deceased, standing for some time in the limited space between the storm doors and the elevator shaft, had the opportunity, if he had exercised the due care of a reasonably prudent person, to observe and know that the elevator doors were open. It cannot be urged for him that he did not know those things which by a reasonable use of his senses he should have known. If he did know, or by the exercise of due care should have known, that the elevator doors were open, then it was his duty to look where he was stepping as he approached the elevator shaft.
It cannot be urged as an excuse for his not performing his duty in this respect that he backed into the elevator shaft.
If he did look he must have seen that the shaft was open, or if he did not look as under the circumstances it was his duty to do, he was in either case guilty of contributory negligence in stepping into the open shaft.
The court are convinced that it affirmatively appears from the evidence produced by the plaintiff, that her husband was guilty of contributory negligence proximately entering into and contributing to the accident which resulted in his death.
Under our finding it is our duty to grant the motion and direct that a nonsuit be entered.
Counsel for plaintiff refusing to accept a nonsuit, the court by Rice, J., instructed the jury:
For the reasons we have assigned in granting the motion for a nonsuit, which the plaintiff has refused to accept, we direct you to find a verdict in favor of the defendant.
Verdict for defendant
Subsequently at the same term, a motion was made for a new trial, the grounds thereof being:
1. That the verdict was (a) against the law; (b) against the evidence; and (c) against the weight of the evidence;
2. That this Honorable Court, in the trial of the case, erred in charging the jury, as follows:
"For the reasons we have assigned in granting the motion for a nonsuit, which the plaintiff has refused to accept, we direct you to find a verdict in favor of the defendant."
3. That the court's finding on the motion for a nonsuit, being also the ground for the direction to the jury to bring in a verdict for the defendant, to wit:
"The court are convinced that it affirmatively appears from the evidence produced by the plaintiff, that her husband was guilty of contributory negligence proximately entering into and contributing to the accident which resulted in his death,"
was erroneous and contrary to the facts.
4. That the testimony introduced by the plaintiff i...
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