O'Rourke v. Woodward

1. Carriers <&wkey;238 — Existence on? Relation —Elevator Passenger. Where an express delivery man or messenger having- packages for delivery to the tenants in a public office building was required, as was the custom, to use the freight elevator when delivering such packages, the relation of carrier and passenger existed between the owner of the building and him. 2. Carriers <&wkey;288 — Injuries to Passengers —Freight Elevators. . Though one properly riding on a freight elevator in an office building was a passenger and the owner of the building was required to exercise the highest degree of care'and diligence in the operation and management of the elevator for Ms safety, he assumed the risk and inconveniences incident to such conveyance, and negligence could not he predicated on the failure to equip the elevator as a passenger elevator should be equipped, where it was properly guarded and properly constructed as a freight elevator. . 3. Carriers <&wkey;295(2), 302(2) — Injuries to Passengers — Freight Elevators. The owner of an office building had a right to carry warehouse trucks on a freight elevator on which plaintiff was properly riding to accompany freight, but if the trucks were so negligently placed as to be caused to fall by the vibration of the car, and plaintiff’s injuries proximately resulted therefrom, or if the car was so negligently operated as to cause the trucks to fall without fault on plaintiff’s part, he was entitled to recover. 4. Carriers <&wkey;331(l) — Liability for Injuries — Contributory Negligence,. If an accident to plaintiff while riding on a freight elevator in an office building was the result of plaintiff’s sitting down on trucks on the elevator, causing them to move and carry him into the open space between the floor of the elevator and the ceiling of the floor above, he could not recover. 5. Trial <&wkey;253(9) — Instructions—Ignoring Issues or Facts. In an action for injuries to a person riding on a freight elevator in an office building caused by the movement of trucks thereon, where defendant insisted that plaintiff deliberately sat down on the trucks and plaintiff that he did not touch the trucks at all, and there was no evidence indicating in the least that plaintiff unintentionally touched the trucks, or that any one else disturbed them, instructions were not erroneous because they pretermitted the theory that plaintiff or some other person on the car might have unintentionally come in contact with the trucks.

Appeal from Oity Court of Birmingham; C. AY. Ferguson, Judge. Action by George M. O’Rourke, pro ami, etc., against Angeline AVoodward, executrix, etc. From a judgment for defendant, plaintiff appeals. Suit for damages for personal injuries sustained by the plaintiff while being carried as a passenger on an elevator in the Brown-Marx Building, a public office building in the city of Birmingham, on February 11, 1915, resulting in the loss of plaintiff’s right leg, and other injuries. The cause was tried upon counts 2 and 3 of the complaint, and the plea of the general issue, and special pleas of cohtributory negligence. Count 3 reads as follows: “On, to wit, the 11th day of February, 1915, the defendant was the owner of that certain office building known as the Brown-Marx Building located on the northeast corner of the intersection of First avenue and Twentieth street in the city of Birmingham, Jefferson county, Ala., and used and operated in said building and in connection therewith conveyances known and called ‘elevator cars/ among other purposes, for conveying to the floors of said building above the grade or ground floor persons having business with the occupants of the rooms or offices on said floors of said building. And plaintiff avers that on the date aforesaid, he, as a servant, agent, or employé of the Southern Express Company, had business with the occupants of some of the offices on some of the floors above the grade or ground floor of said building, and, in the pursuit of such business and the transaction thereof, the plaintiff was, by a servant, agent, or employé of the defendant called an elevator conductor, viz. one Lucius Miles, while acting within the line and scope of his duty and employment as such elevator conductor, being conveyed in one of said elevator cars .to the sixteenth floor of said building, when the plaintiff avers the defendant so negligently conducted her business in and about so conveying the plaintiff as that the plaintiff’s legs were mashed,” etc., followed by an enumeration of his resultant injuries. Plea 2 reads as follows: „ “Contributory negligence in this: Plaintiff who was riding on an elevator used for the carriage of freight, negligently placed himself against a pair of trucks then and there leaning against the side of said elevator, and negligently caused said trucks to fall with him to the floor and into the opening between said elevator and the floor of said building, and as a proximate consequence,” etc. The evidence for plaintiff tended to show that on February 11, 1915, he was in the service of the Southern Express Company as a deliveryman or messenger, in the city of Birmingham, and' that on said date he had for delivery to certain of the tenants in the public office building of defendant, known as the Brown-Marx Building, a number of express packages; that he was delivering said express packages in said building in pursuit of the business of his employer; that the said building was owned by the defendant, and in connection therewith, at said time, defendant maintained and used passenger and freight elevators by means of which the defendant’s tenants in said building, and the persons having business with them, were conveyed to the various floors thereof, and other elevators, by means of which express packages, freight, etc., were conveyed to said tenants ;■ that on said date plaintiff had a number of express packages or freight for delivery to certain of said tenants in said building; and that upon his. arrival he went to one Andrews, who was then the superintendent of the running and operation of elevators in said building, and asked him if he could use the passenger elevator to take said express packages up into the building to the tenants for whom they were intended, and his request was declined, but he was directed to use the freight elevator for that purpose, and that, in fact, he had all along been required to use said freight elevator in delivering such freight. Among the freight for delivery was a shrubbery, several feet in height. Thereupon, plaintiff went to the freight elevator with his freight or packages, and himself rode therein for the purpose of delivering the packages upon the different floors where they were destined. Several stops were made in ascending, at different floors, and at the ninth floor plaintiff set out in the hallway express packages destined for that floor, and then returned to the elevator, walked over to the west side and leaned against the wall of the same, When he then observed a pair of warehouse trucks in the elevator standing on end and tilted; that thereupon the elevator began to ascend, and when, in its progress it reached a point between the eleventh and twelfth floors, said trucks fell, causing plaintiff to fall upon them, and he was carried off the elevator floor, and his legs caused to protrude over the elevator floor and into an unprotected opening between the top of the guard in front of the elevator shaft between the eleventh and twelfth floors and the ceiling of the eleventh floor, and in this position, with his legs protruding over the side of the elevator floor, as the elevator continued to ascend, the plaintiff’s legs were caught between the floor of the elevator and the ceiling of the eleventh floor, and so crushed that the amputation of plaintiff’s right leg was necessary. Plaintiff was 20 years old, and this suit is brought by his nexi friend. Plaintiff further testified that the elevator stopped more suddenly at the ninth floor, different from the way it had stopped theretofore, and that as the elevator ascended from the ninth floor he noticed a peculiar vibration, and the elevator began to shake. Plaintiff’s testimony tends to show that the trucks were negligently placed in the elevator, by being too much tilted, and that the peculiar and unusual vibration of the elevator caused the trucks to fall and carry plaintiff from off his feet and into the opening, thus causing the injury. Plaintiff testified positively that he did not touch the trucks. The evidence for defendant tended to show that the trucks were in the northwest corner of the car, sitting up against the west wall, and the tips were resting on the floor and the handles were back against the-wall, and the wheels were resting on the floor, and that plaintiff got upon the trucks and sat down on the top, and put his feet on the bottom rung, causing the trucks to slip out from under him, and slide along the floor. There were in the car at the time only the plaintiff, the elevator boy, and a negro maid. The car was not used as a passenger elevator, but for freight and express packages, and those wishing to accompany the freight rode on this car. The front of the elevator was open, but there Were sliding gates on each floor attached to the floor, yet not connected with the elevator. The evidence for defendant tended to show that the elevator in question was of the proper kind, and properly constructed as a freight elevator, and that the sliding gate in this instance formed a proper inelosure, and was in accordance with modern practice on freight elevators, and that, in fact, the guarding around this particular elevator shaft was more complete than is usual and customary in freight elevators by reason of the fact that the standard inclosure across the elevator hatchways is from 4 to 5-feet high, while the one in question was 7 feet, 6 inches, and a portion of it entirely across the ceiling. The following charges were given by the court at the request of defendant, and constitute the assignments of error on this appeal: “(16) The court instructs the jury that the owner of a freight elevator is not required to exercise the highest degree of care in supplying and maintaining guards and safety appliances in connection with said elevator for the protection of persons riding thereon with freight, but is merely required to exercise reasonable care, such as would be exercised by a reasonably prudent person under similar circumstances.” “(I) The court charges the jury that, evén though the defendant had the gating over the elevator shaft on each floor constructed with an open space at the top in this case, such construction would not constitute actionable negligence, and the plaintiff would not be entitled to recover therefor.” “(X) I charge you gentlemen of the jury that if you believe from the evidence that the plaintiff leaned or rested his weight on the trucks, and that as a proximate result of his so doing he was injured, then your verdict must be for the defendant.” “(J) The court charged the jury that the mere presence of the trucks upon the car in which plaintiff was riding would not entitle the plaintiff to recover, and before the plaintiff can recover against the defendant on account of the presence of these trucks on the car, it must be reasonably established that the trucks were placed in such a manner in the car that they were caused to fall from the movement or operation of the car, and unless the trucks were caused to fall by the movement or operation of the car, the defendant would not be liable to the plaintiff.” “(K) Unless the jury believe from the evidence that the trucks on the elevator were so placed in the elevator that they would likely be caused to fall by a jar or movement of the car, and unless the jury are further, reasonably satisfied from the evidence that the’trucks were caused to fall by the movement or operation of the car on the occasion complained of, the jury should return a verdict for the defendant.” “(N) The court charges the jury that under the evidence and issues in this case the defendant had a right to operate the elevator in question with the pair of trucks upon it in that part of the elevator in which, under the evidence, they were carried, if said trucks were placed in said place in such a position that they would not be caused to fall by the movements or operation of the elevator.” “(G) The court charges the jury that if you believe from the evidence that the plaintiff placed his foot or some part of his body against the trucks, and that this was the sole proximate cause of their falling, you should return a verdict for the defendant.” “(F) The court charges the jury that, -even though you believe from the evidence that the opening in the gating protecting the floors of the building from the elevator shaft should have entirely covered the shaft on each’ floor, and even though the jury may believe from the evidence that the trucks should not have been carried in the elevator at all, and even though the jury believe from ithe evidence that the trucks were placed in the elevator in such a position that they were caused to fall by the vibration of the elevator, or the manner in which it was running, yet if the jury are further reasonably satisfied from the evidence that the plaintiff negligently leaned against the trucks or his foot or body touched the trucks, or any other part of his body, and that this conduct on his part proximately contributed even in the slightest degree to cause the trucks to fall, you should find a verdict for the defendant.” The cause was submitted to the jury upon the issues above indicated, resulting in a verdict for the defendant, and from the judgment following, the plaintiff prosecutes this appeal.