Grand Rapids Bedding Co. v. Grand Rapids Furniture Temple Co.

Fellows, C. J.

(after stating the facts). We shall not take up each assignment of error. As the case must go back for a new trial we shall dispose of the controlling questions. Plaintiff’s right to maintain this action is based upon the statute (2 Comp. Laws 1915, § 5468), which gives such right:

“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof.” * * *

This “legal liability” arises where such other person is guilty of negligence, and unless a legal liability for negligence is made out the plaintiff can not recover. Carlson v. Railway Co., 143 Minn. 129 ( 173 N. W. 405 ); Fidelity & Casualty Co. v. Electric Co., 187 Iowa, 1014 ( 174 N. W. 709 ); Thede v. Deposit Co., 210 Ill. App. 450 .

Defendant’s counsel insists that the trial judge should have directed a verdict because of the contributory negligence of Mr. Mulzer, and should have granted the motion for judgment non obstante veredicto based on this ground. He insists that Mr. Mulzer’s negligence was the sole and proximate cause of the accident and that defendant is not liable. Plaintiff’s counsel call our attention to cases holding that a wide open elevator door is an invitation to enter. We need not consider them as they are not applicable to the instant case. Plaintiff’s testimony conclusively, establishes that the elevator doors were nearly closed, were but three or four inches apart, only by opening them could one get in *490 side — for all practical purposes the doors were closed. We are not here dealing with an automatic elevator, one which could be brought to the desired floor by pushing a button; this elevator required human agency to move it; an operator was provided for it, and by simply pushing a button his attention would be attracted and the elevator brought by him to the desired floor. All of this was well known by deceased who had been in the building hundreds of times. Instead of pushing the- button deceased himself opened the doors and without ascertaining whether the elevator was there stepped inside the shaft and received the injuries which resulted in his death. Such utter disregard for his own safety, such carelessness and recklessness constituted contributory negligence as matter of law.

In Bremer v. Pleiss, 121 Wis. 61 ( 98 N. W. 945 ), it was said:

“There is no doubt that, when a door to an elevator shaft is thrown open by the attendant, that very act constitutes an invitation to enter. Tousey v. Roberts, 114 N. Y. 312 ( 21 N. E. 399 ); Oberndorfer v. Pabst, 100 Wis. 505 ( 76 N. W. 338 ). So it has been held that, where the door is fully open and the shaft is dark, the question whether a passenger is guilty of contributory negligence in stepping in without examination is one for the jury. People’s Bank v. Morgolofski, 75 Md. 432 ( 23 Atl. 1027 , 32 Am. St. Rep. 403 ); Southern Bldg. & Loan Ass’n v. Lawson, 97 Tenn. 367 ( 37 S. W. 86 , 56 Am. St. Rep. 804 ); Dawson v. Sloan, 49 N. Y. Sup. Ct. 304, affirmed in 100 N. Y. 620 . We have found no case, however, holding that where the door to the shaft is only halfway open, so that the passenger entering is obliged to, and does, open it the rest of the way in order to enter, the question of contributory negligence is a matter of doubt; nor do we see how it could be so held. It seems to us entirely clear that the fact that the door is only partway open is a definite and unequivocal advertisement that something is wrong — certainly not an assurance that the car is there. The use of passenger ele *491 vators is now so universal that all know that when an elevator car is brought to a standstill, ready for passengers to enter or leave, the door is always thrown wide open. A door only halfway open is a plain suggestion of some unusual condition — a hint to investigate, not an invitation to enter or an assurance of safety.”

See, also, Kauffman v. Machin Shirt Co., 167 Cal. 506 ( 140 Pac. 15 ); Ballou v. Collamore, 160 Mass. 246 ( 35 N. E. 463 ) ; Wheeler v. Hotel Stevens Co., 71 Wash. 142 ( 127 Pac. 840 , Ann. Cas. 1914C, 576); Claypool v. Wigmore, 34 Ind. App. 35 ( 71 N. E. 509 ); Globe Indemnity Co. v. Hook (Cal. App.), 189 Pac. 797 ; Massey v. Seller, 45 Ore. 267 ( 77 Pac. 397 ); Hutchins v. Sleigh Co., 61 Mich. 252 .

But plaintiff insists there was a custom prevailing in the building of permitting the tenants and their employees to operate the elevator and of leaving the doors partly open when the elevator was at the ground floor. If there was a custom of leaving the doors of the elevator a few inches open only when the elevator was at the ground floor, if an opening of a few inches in the doors was notice that the elevator was there, if it was an invitation to enter and use the elevator, and this was the established custom and of it defendant had notice, then we think the questions of defendant’s negligence and of deceased’s contributory negligence become questions for the jury. Bearing in mind the rule that upon defendant’s motion for a directed verdict the testimony and legitimate inferences most favorable to plaintiff must be accepted, we can not' say that there was no testimony of such custom. It was of the most meagre sort. As no motion for a new trial was made, we shall not undertake to weigh it further than to say that it did not establish so notorious a custom as that we can say as matter of law that defendant had notice of it, nor was there testimony of actual notice.

*492 With reference to the custom defendant’s counsel requested the court to charge the jury:

“Even if you find that there was such a custom, unless you find that defendant had notice or knowledge of such custom, your verdict must be for the defendant.”

This request was refused and was not given in substance. The substance of this request should have been given. A custom may exist so long as to give constructive notice of it or there may be actual knowledge of its existence. But it must be obvious that defendant can not be held guilty of negligence for the breach of a duty created by a custom of which it has neither actual or constructive notice. Fluhrer v. Railway Co., 121 Mich. 212 ; Nichols v. Railway Co., 125 Mich. 394 .

By an amendment to its declaration plaintiff counted on sections 5333 and 5595, 2 Comp. Laws 1915, but as the case was not submitted to the jury upon the count charging a breach of statutory duty we do not consider the statutes or their validity.

The judgment will be reversed with a new trial. Defendant will recover costs of this court.

Wiest, Clark, Bird, Sharpe, Moore, and Steers,, JJ., concurred. The late Justice Stone took no part in this decision.

rights and remedies under compensation acts where injuries were caused by negligence of third person, see notes in L. R. A. 1916A, 360; L. R. A. 1917D, 98; L. R. A. 1918F, 524.