Delk v. SellersDelk v. Sellers
This suit for damages results from an injury to plaintiff which occurred when a homemade elevator in the home of defendant Sellers malfunctioned. The
The home was conveyed to defendant Sellers who contracted with defendant Harrell to do certain remodeling of the home. This remodeling included enclosing the area in which the elevator operated to create in effect an elevator shaft and replacement of the ceiling in the elevator cage.
Sellers was an Amoco jobber in the Bainbridge area, and Delk was territory manager of Amoco Oil Company. On the day of the incident in which Delk was injured, Delk, accompanied by Rising, a field sales manager with Amoco, called on Sellers at his plant in Bainbridge. The three had lunch together and later traveled to the Sellers’ home where they viewed the remodeling which had been done. Prior to the incident the three men were in a den on the lower level of the Sellers home when Delk, in order to go to a bathroom on another level, had ridden the elevator up and down. When the three men were ready to leave they decided to ride the elevator up from the basement level. After the elevator had risen four or five feet it fell and Delk’s arm was caught between the wall and the elevator face, causing severe injuries.
Delk, as plaintiff, brought this action for damages alleging negligence on the part of defendant Sellers and defendant Harrell. Upon the trial of the case the jury returned a verdict in favor of the defendants and against plaintiff. Plaintiff appeals. Held:
1. The evidence at trial did not demand a verdict in favor of plaintiff. Therefore, the trial court did not err in overruling plaintiffs motion for new trial on the general grounds. Questions of negligence and contributory negligence are peculiarly matters for the jury except in plain and indisputable cases.
Williams v. Kennedy,
2. Nor did the trial court err in charging the jury on the theory of accident as the charge was authorized by the evidence in this case.
Cobb v. Big Apple Supermarket of Columbus, Inc.,
3. Plaintiff contends that the trial court erred in charging the jury that it could find that the plaintiff was a licensee. Evidence was presented that the purpose of the three men in going to the home of the defendant Sellers was to see the renovation that had been made and that while there they toured the home, talked about duck hunting and drank beer. See Code § 105-402. This evidence, considered in the light of the test for distinguishing invitees and licensees set forth in such cases as
Higginbotham v. Winborn,
The charge regarding the definition of licensee and the duty owed to a licensee was not an expression of opinion by the trial court but was a correct charge properly adjusted to the evidence. This portion of the charge was not unduly emphasized nor misleading.
There is no merit in plaintiffs contention that the distinction between a business invitee and a licensee is an impermissible classification in violation of the equal protection guarantees of the State and Federal Constitutions. See in this regard
Bickford v. Nolen,
4. Plaintiff contends that due to the evidence, that defendant Sellers had given assurances of safety to plaintiff Delk that the elevator was in fact safe at the time that the plaintiff got on the elevator, the defendant Sellers had a duty to exercise ordinary care to make certain that the elevator was safe as he represented it to be and that the trial court erred in failing to so charge. The plaintiff has relied on cases in which a person under no
5. Relying primarily on
Helmly v. Savannah Office Bldg. Co.,
6. The trial court’s charge on Code § 38-119 (Presumption Arising From Failure to Produce Evidence) did not refer to either party, and thus charged it as an abstract proposition which might apply equally to either party. A new trial is not required. See
Seaboard C.L.R. Co. v. Harris,
7. Cliet, the carpenter who installed the ceiling in the elevator, testified that he had drawn a red line on the wall of the elevator to designate where the ceiling should go and that defendant Sellers had told him where to put the red line. On cross examination Cliet acknowledged a prior statement that defendant Sellers did not show him exactly where to put the top of the ceiling except to stay below the round rods. During redirect examination plaintiffs attorney was instructed, by the trial court, not to get into anything about insurance. Plaintiff contends that this instruction was harmful error as it prevented eliciting testimony that would show that the statement was taken and written by someone who had an interest in the outcome of the case and who had asked the questions while Cliet just answered the questions that were asked of him. It is proper to permit an impeached witness to offer in explanation matter to rebut the discrediting effect of prior contradictory statements, but the testimony which plaintiff would elicit is not relevant to this purpose nor to any other issue germane to this case. There is no error in excluding irrelevant evidence, particularly in this case where the irrelevant matter apparently involved insurance coverage.
8. In a question put to plaintiff on cross examination, defendant Sellers’ attorney analogized the use of the elevator with no door to holding one’s hand in front of a rattlesnake. Plaintiffs counsel objected to the question as an attempt to ridicule plaintiff. We agree with the trial court’s conclusion that the question was not an attempt to ridicule but was a rhetorical illustration of the principle of assumption of risk. This contention is meritless.
9. Plaintiff contends that the trial court erred in admitting a model of the elevator in question because the model was inaccurate, incorrect and not a trustworthy
10. As to the remaining enumerations of error, although the questions to which plaintiff objected may have called for legal conclusions we find no harm to plaintiff in these questions or the answers thereto.
Judgment affirmed.