Thomas v. Otis Elevator Company
| Decision Date | 04 April 1919 |
| Docket Number | 20387 |
| Citation | 172 N.W. 53,103 Neb. 401 |
| Parties | DANIEL M. THOMAS, APPELLEE, v. OTIS ELEVATOR COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.
AFFIRMED.
Gurley Fitch, West & Hickman, for appellants.
John O Yeiser and John C. Travis, contra.
This is an action to recover damages for personal injuries brought against the Otis Elevator Company, and one Blackwell, one of its employees. Plaintiff recovered a judgment for $ 25,000, and defendants appeal.
Selden-Breck Company, builders, were erecting a hotel building in Omaha under a contract. Part of the work was sublet to a number of other concerns. The Otis Elevator Company, defendant, had a subcontract to install two elevators in the building, and the Omaha Iron Works had a subcontract to erect and furnish certain doors and metal work for the elevator shaft.
The plaintiff was a workman employed by the latter. On the morning of the accident, plaintiff, who had been directed by his foreman the night before to clean up certain dirt and debris from the runway of the elevator door upon the fifth floor of the building, was engaged in this duty, part of his body projecting into the elevator shaft. The foreman of defendant elevator company and Blackwell were working upon an elevator in another shaft across the hall, when some one called up that shaft to one of them, telling him the foreman, or superintendent, wanted to speak to him. The two men left the elevator upon which they were working, went to the south shaft, got into the elevator, which was standing there, and, without giving any notice or warning, started the elevator downward. It struck the plaintiff at the next floor, and he fell five stories to the basement. The fall caused compound fracture of both legs broke one arm, fractured his jaw, dislocated a number of his teeth, and otherwise severely sprained, bruised and injured him. His injuries required a number of surgical operations, which resulted in shortening one leg about one and a half inches more than the other one which was also shortened. He suffered severe pain and agony, his knee was stiffened, and he is a cripple for life. He was a young man about 26 years of age, at that time, of strong physique, and was earning at the time of the accident from $ 85 to $ 90 and upwards a month, excluding overtime, and his expectancy of life was 37.14 years.
The particular grounds of negligence alleged in the petition are substantially that the work to be performed by the Elevator Company and the Iron Works was of such a character that it conflicted and rendered the south shaft dangerous for the employees of both companies, if they were permitted to work in and about the shaft at the same time; that "said south elevator shaft was turned over to the Omaha General Iron Works, and that instructions were issued to these defendants that said south shaft was not to be used by them, nor was the elevator to be operated during working hours, until the completion of the work to be performed in the shaft by the Omaha General Iron Works;" that said work "was not in fact completed, as said Otis Elevator Company well knew, or ought to have known;" that the defendants, without notice of warning, or taking any precautions, and with full knowledge of the plaintiff's employment, and in breach of the instructions issued that they were not to operate said car in said south shaft during working hours, carelessly and negligently lowered the elevator in said south shaft from the sixth floor downward, striking plaintiff, etc.
In its answer defendant Otis Elevator Company denies generally most of the allegations of the petition, and denies that the plaintiff while working for the Iron Works sustained accidental injuries. It also pleads that under the employers' liability act, where a third person is liable to the employee for injury, the employer shall be subrogated to his right against such third person, and that by reason thereof the plaintiff assigned his cause of action, if any, against said defendant to his employer, and is not a proper party to institute this action.
The reply alleges that the action was brought with the approval and under the direction of the Iron Works. It is further alleged that plaintiff had filed a petition in the district court, alleging the fact of the accident; that the Iron Works had directed him to prosecute it in his own name; that the Iron Works admitted its liability to plaintiff for compensation, and its willingness to assign its right of action against the Elevator Company, if approved...
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