Wolters v. Summerfield Co.

• Decision Date: 18 March 1913
• Citation: 160 Iowa 127,140 N.W. 388
• Parties: WOLTERS v. SUMMERFIELD CO.
• Court: Iowa Supreme Court

160 Iowa 127

140 N.W. 388

WOLTERS

v.SUMMERFIELD CO.

Supreme Court of Iowa.

March 18, 1913.

Appeal from District Court, Scott County; Wm. Theophilus, Judge.

Action to recover damages for injuries received by Harry Thobe by a weight used on an elevator in defendant's building, resulting in the death of Thobe. The defendant denied all negligence on its part and pleaded that the negligence, if any, was that of a fellow servant of Thobe. On the issues joined the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Reversed.Cook & Balluff, of Davenport, for appellant.

J. C. Hall and Lane & Waterman, all of Davenport, for appellee.

DEEMER, J.

The defendant is a corporation, doing business in the city of Davenport. It owns, occupies, and operates in the conduct of its mercantile business a large building, four stories in height, with a basement. In this building is an elevator, running from the basement to the top floor. Harry Thobe, a young man 26 years of age, who had done some work about an elevator, was employed by the defendant company, something like two months before the accident, as a shipping clerk and a sort of general manager of the other employés. As he was the only one in defendant's employ who knew about elevators, the people who installed it gave him instructions about it, and he did the oiling and looked after the machinery thereof. He had a sort of superintendence thereof by reason of his familiarity with such appliances. Mark Silber was president of the defendant company, but he had no experience with elevators, and was not familiar with the mechanism thereof. On the day of the accident smoke or steam was noticed coming from under a slide or gangway at one side of the bottom of the elevator shaft, and Thobe and two or three other employés undertook an investigation as to the cause thereof. The men were then on the first floor of the building, and after sending word to the office Thobe, Meyer, and one Bischoff went down in the elevator to extinguish the flames. With the elevator down in the well, it was so dark that the men could not see, and some one suggested that the elevator be moved to an upper floor. The regular elevator boy was off duty, and Bischoff, who operated the same during the absence of the regular man, volunteered to take it to an upper floor. There is just a little conflict in the testimony as to what was said, but Bischoff ran the elevator to the first floor, and a jury was justified in finding that one of the employés told him not to come down with the elevator. Bischoff said that he knew he might hurt some one if he ran the elevator down, but did not realize there was any danger in running it up. After the elevator had been run up to the first floor, Thobe went down into the elevator pit, and it appearing that the smoke was coming from behind the uprights, which formed the slides for the counterweights of the elevator, he crawled in between them to investigate more closely, and while in that position Bischoff, who knew that Thobe was in the pit, but did not realize the danger of his position, without warning, in order to carry an employé, ran the elevator to the fourth floor, causing the counterweights to come down between the uprights and to strike Thobe with such force as to cause his death.

Recognizing that the act of Bischoff was that of a fellow servant, for which defendant was not responsible, plaintiff, who is the administrator of Thobe's estate, alleged that Silber, the president of the defendant company was negligent, in that he knew Thobe was in the elevator shaft; and that he failed to use ordinary care to avoid injuring him, although having knowledge of his dangerous position. The exact proposition here is that Silber, the president of the company, was present when some one gave the order to Bischoff to take the elevator to the first floor, and was negligent, in that he failed to stop the elevator after Bischoff had started to go to the fourth floor, or in failing to direct some of the men to stop it.

There is considerable conflict in the testimony as to whether or not Silber was present at the time the elevator was moved to the first floor, or when it was run to the fourth floor. But the jury was authorized to find that Silber was present when the men went to the basement to investigate the cause of the smoke, was there when some one suggested that the elevator be moved and was present when the elevator was moved to the fourth floor, although all concede that he gave no orders whatever in the premises, and that he had nothing to do with the handling of the elevator.

As already stated, after the men took the elevator to the basement, it was found that they could not see where the smoke emanated from, and some one of the group, other than Silber, suggested that the elevator be taken to the first floor, in order to have a better opportunity to see where the smoke came from. Bischoff undertook to do this, and did so. According to Bischoff: “They told me to take the elevator up. They didn't tell me how far up to take it; and they told me not to move it after I had stopped it. I am not sure who that instruction came from. The first thing I knew of an accident was that I felt a bump on the elevator. I knew something was wrong; I didn't know what it was. I heard an outcry after the bump. Then I reversed the elevator and brought it back down a few feet and stopped. I stopped and spoke to them down below about what was wrong, and I couldn't find out, and I climbed out of the elevator and closed the gate and went down. I went downstairs from the top floor. Mr. Silber was there when I got back down to the basement. I don't know what he was doing. I know he was there at the time. After I ran the elevator up to the first floor, I kept it stationary for a few minutes. I couldn't say how long. I stood there as much as two or three minutes. Q. Did you talk to any of them down there about moving the elevator after you got up to the second floor? A. I don't remember if I said anything at all to them after I was on the first floor. Q. Did anybody down below say anything to you about moving the elevator after you ran it to the first floor and stopped it? A. Yes; they called up not to move the elevator. I took the finisher up to the top floor in the elevator, never thinking about the weights.”

Another witness testified as follows regarding the directions to Bischoff: “I didn't see Bischoff take the elevator up at all. All I know, after he went up the shaft, that we called him Charley, and that is how I know he was in there; and his reply came down the shaft, and told me who he was. I called to him. I told him not to come down with the elevator. I knew his voice. I told him not to come down with the elevator. It was given by us that were in the pit. It was the direction that was given to Bischoff, and the only direction was that he was not to let the elevator come down. I suppose that was because somebody was going into the pit under it. Carl Meyer, Harry Thobe, and myself said, ‘don't let the elevator come down.’ That was an order or direction to the man in the elevator. I didn't hear any other order or direction given to the man in the elevator.”

This is the testimony upon which plaintiff relies as showing negligence upon the part of Silber, the president of the company. It is said that the order given to Bischoff in his presence was a negligent one, in that he was told not to come down with the elevator, instead of being told not to move it at all, and that Silber should have corrected the order, or taken some other precaution to save Thobe, who he knew to be in a dangerous position, and that Silber was also negligent in not stopping the elevator, or ordering it stopped, when he was advised...