157 S.W. 811 | N.D. | 1916
Action to recover damages alleged to have been received through the negligence of the defendant. The answer is a general denial with a plea of contributory negligence. The defendant, owner of the Grand Pacific Hotel in Bismarck, in September, 1912, installed therein a passenger elevator. Its use was begun September 30th and this accident occurred October 6th. On account of two glass panels or guards to be set in the two doors to the elevator shaft on each floor, not arriving, the elevator was operated temporarily without them. During such interval the plaintiff was injured in its operation. The complaint sets forth these facts with particularity, and that the elevator as so used “was highly dangerous and liable to cause serious injury to the body or limbs of any person coming in collision or close contact” with the steel elevator cage moving the elevator shaft; and negligence is charged in permitting it to be operated. It is charged that plaintiff was an employee of said hotel, and, while in the discharge of his duties, “plaintiff not knowing and without warning that he was through said barrier (the hole in one of the doors) passed his head beyond said opening in the upper part of said sliding door and within said elevator. While he was so stand
At the close of the evidence the court was requested to take the case from the jury and direct a verdict of dismissal on the grounds of failure of proof and because contributory negligence was established. This the court refused to do, preferring to submit all issues to the jury, and thereafter, if necessary, pass upon the question under a motion for judgment notwithstanding the verdict, should one be made. However, the jury failed to agree, whereupon the court granted the motion for a directed verdict of dismissal. From the judgment thereon plaintiff appeals.
The injury occurred on the ground floor of the hotel at the entrance to the elevator. Blaintiff, a boy past fourteen years of age, was severely injured. He had been employed around the hotel off and on for a year or more, and for six or seven months next prior to the accident had worked continuously as bell boy, except that some four weeks next prior to September 30th he had not been at work or around the hotel, having been temporarily absent. He thoroughly understood the hotel and his duties. He knew that the glass guards were not in the doors opening into the elevator shaft. He knew the operation of the elevator and understood the movement of the cage within the elevator shaft. His duties were those of the ordinary elevator bell boy; to answer calls, look after the convenience of guests, and work as otherwise directed. Three bell boys were employed, two at the time being on duty, this plaintiff
Concerning this he was asked and gave the following answer:
Q. Now was it necessary for you to insert your head in that closed door in order to get close enough to tell him that you had a call ?
A. No, it wasn’t necessary; I didn’t realize any danger, though.
Peter refused to take the order to attend to the room mentioned and ordered the elevator boy to go on down to the basement.
Q. Now I would like to know, and I would like to have you tell the jury, what particular thing it was that made you lean over and stick your head in between those bars ?
A. To get closer to Pete.
Q. Well, Pete was just inside the bars, wasn’t he ?
A. lie was in there about 3 feet.
Q. And the elevator was standing still ?
A. Yes, sir.
Q. And so far as you knew there was no intention to move it, was there ?
A. No, sir. Not then. But Peter said to Henning “let her down.” That was right there at that time.
Q. That was after you had your head in there ?
A. Yes, sir.
• Immediately after this the cage descended and the top1 of-it caught plaintiff’s head at the back beyond the crown, and jammed his head and face down against the bar across the door, 42 inches above the floor. The cage was brought to a standstill, and plaintiff released severely injured. In explanation of why he had his head inside of the elevator shaft, plaintiff has testified that he did not know there was any danger there, and “did not know that his head was within that opening in the door as he stood there,” and did not sense that such was the fact until the descending elevator struck his head. When asked, “Why didn’t you take your head out ?” he answers, “ I didn’t know I had my head in.” The undisputed evidence shows that the top of the hood operates within, at the nearest, 3 inches to the inside of the door, so that his head could have been 3 inches within the elevator shaft and still not been touched by the descending elevator cage. As it was, his head must have protruded at least 10 or 12 inches inside the opening in the door and that far from the perpendicular. Plaintiff was 5 feet 3 inches, or 63 inches in height, so that exactly § of his height was below the bottom of the opening, which was 42 inches above the floor upon which he was standing. The 21 inches of his head and shoulders above the bottom of the opening in the door and 42 inches from the floor then must have been bent or thrust at an angle of approximately 90 degrees into the
“Well, the elevator bell rang on the third floor, and I went up there, and it was Peter Boehm, and I took him down and was going down and I see Martin Derringer leaning up against the elevator, — against the wall there, — and I stopped and he started to talk to Peter about some bell, I think it was 118, and they were talking there, and pretty soon another bell rang, and Martin turned his head away, and I went down to the basement, — started down. I heard him holler, and reversed the elevator, and when I got up he was lying there on the floor.” On cross-examination he states that Martin was standing in front of the opening when the elevator came down, and started talking with Peter about the bell at room 118, when the bell in another room rang and Peter told him (witness) to go on down, which he did.
Q. And you thought Martin had turned away ?
A. Yes, sir.
Q. You didn’t see him at the time you started down, that he had his head through the opening ?
A. He didn’t have his head in there.
Q. He didn’t ?.
A. No.
Q. Well, you know a little later he got his head caught between the hood of the elevator and the bar on that door ?
A. Yes.
Q. And you say he didn’t have his head in there when you started down ?
A. No, sir; didn’t have it in there when I started down.
This testimony is entirely consistent with that of plaintiff as to the facts. Plaintiff understood the mechanism of the elevator and has de
The question first arising is whether plaintiff was guilty of contributory negligence in inserting his head through the opening in the door and within the elevator shaft, assuming that he did not realize either the danger or that he had protruded his head within the elevator cage. Resolving all reasonable inferences in his favor the facts of the situation speaking for themselves conclusively establish that, without thinking what he was doing or sensing the danger that was known and understood by him, or what should have been plainly apparent, he nevertheless voluntarily, though thoughtlessly, placed himself in the dangerous position described and in which but a moment later he was injured. Must plaintiff he held guilty of contributory negligence precluding his recovery ? Every text writer and every adjudicated case anywhere nearly parallel on facts and on principle answer in the affirmative, and this, too, in spite of plaintiff’s youthfulness. The ojúnion from Cronin v. Columbia Mfg. Co. 75 N. H. 319, 29 L.R.A.(N.S.) 111, 71 Atl. 180, is closely parallel in fact. It reads: “The plaintiff admitted in his testimony that he knew at the time of his injury that if he allowed his foot to extend beyond the guard it would hit the floor above when the elevator went up through, but he testified that he was not thinking of the situation at that time. He was a boy of average intelligence and about fourteen years of age, who it appears understood the situation and appreciated the danger. It was unnecessary, therefore, for the defendant to instruct him that it would be dangerous for him to allow any part of his person to extend beyond the guard when the elevator was in motion. Hicks v. Claremont Paper Co. 74 N. H. 154, 157, 65 Atl. 1075.
In this connection it may be well to remark that there is a clear line of demarcation in the authorities between issues of negligence and contributory negligence considered as to those entering into or alighting-from passenger elevators, and as to accidents occurring while the passenger is being carried therein, from cases like this at bar, where a person, whether a servant or would-be passenger, either understandingly or heedlessly thrusts head or limbs through an opening into an elevator shaft. A search has disclosed no case of the latter kind where-contributory negligence was not imputed and precluded recovery as a matter of law.
And appellant’s brief cites no authority to the contrary. However, he contends that, on account of plaintiff’s minority, youth, and immaturity he should be measured in his conduct by what is usual to minors, of his age and mental capacity, and asserts that when such a standard is applied an issue of fact upon contributory negligence necessarily arises to be decided as a question of fact by a jury, instead of resolving-into a proposition of law. It is true that, in considering cases where an infant is to be charged with contributory negligence, the age and mental capacity are to be considered with all other attending circumstances. Where, in the light of human experience, the infant is so young as not to be presumed to sense or foresee danger liable to follow his acts, negli
An examination of the evidence discloses that plaintiff became fourteen years of age in July, preceding his injury on October 6, 1912; that he had worked as a bell boy in this hotel off and on for a year or more. He was of at least medium size for his age, and was bright and intelligent, and an eighth grade pupil when at school. He has given his testimony understandingly, and has evinced the knowledge of an adult at all times, of the situation concerning which he has testified. The elevator had been in operation one week, during which time he had learned to run it and understand its operation and mechanism, its horse power and velocity. He knew that it was unfinished. During
But appellant cites an excerpt from Umsted v. Colgate Farmers’ Elevator Co. 18 N. D. 309, 122 N. W. 390, wherein 29 Cyc. 540, is cited to the effect that “in every case the question of the intelligence of the child and the measure of his capacity should be left to the determination of the jury.” The portion quoted is but part of a lengthy discussion of contributory negligence as applied to infants, and immediately following this excerpt Upthegrove v. Jones & A. Coal Co. 118 Wis. 673, 191 N, W. 385, 14 Am. Neg. Rep. 670, is also quoted as follows: “The true test as to whether a minor has assumed the ordinary risks of his employment or is guilty of contributory negligence is not whether he in faqt knew and comprehended the danger, but whether under the circumstances he ought to have known and comprehended such danger. . . . Where it appears from the undisputed evidence that the defect or danger is open and obvious, and such as under the circumstances ought to have been known and comprehended by the plaintiff, then he will be held to have assumed the risk as a matter of law.”' This is the doctrine applied in this case at bar. We quote again from Umsted v. Colgate Farmers’ Elevator Co.: “A servant, although under age, assumes all patent and obvious risks of his employment if he has sufficient intelligence to understand and appreciate it (26 Cyc. 1220E),. except where the child is so young as to be incapable of exercising judgment and discretion. The rule of contributory negligence applies-where the person is an infant the same as where he is an adult.” 29 Cyc. 535. And on the second appeal after retrial in Umsted v. Colgate Farmers’ Elevator Co., it was held, quoting from the syllabus of 22 N. D. 242, 133 N. W. 61, “that it conclusively appears that plaintiff' was not only guilty of contributory negligence, but that he assumed the risks incident to such experimental tests. Hence, his recovery cannot be sustained.” Though plaintiff was a minor, it was held that he was-guilty of contributory negligence as a matter of law, although the jury-had found the contrary by their verdict; and it may be noted that the-opinion in both cases is by the same justice. See also Krisch v. Richter, — Tex. Civ. App. —, 130 S. W. 186, where a boy sixteen years old was held bound to know and appreciate open and obvious danger. The
This plaintiff acted recklessly and heedlessly, and should be bound by the consequences brought upon him by his own carelessness. He was guilty of contributory negligence as a matter- of law. This holding decides the case adversely to appellant, and renders unnecessary an examination of any other assignments presented in his brief.
Appellant contends that the fact that the jury disagreed upon supposed questions of fact of negligence and contributory negligence submitted to it should be considered and taken as strong evidence that because of plaintiff’s minority he was not guilty of contributory negligence. The answer is that in many of the cases cited verdicts were returned finding plaintiff not to be guilty of contributory negligence, but which were set aside and the contrary found as a matter of law. Plaintiff’s argument carried to its logical conclusion would prevent any determination as a matter of law, that a plaintiff had been guilty of contributory negligence barring his recovery, where the court had erroneously submitted such questions to a jury, and it had happened to pass erroneously thereon, no matter how culpable and gross the plaintiff’s negligence. In reading the record many matters are disclosed upon which a jury might disagree, and from conclusions upon a portion of the proof erroneously applied or omitted to be applied at all to the evidence surrounding contributory negligence, a disagreement might result on such supposed issue of fact. Plaintiff’s intoxication or nonintoxication is an illustration. One can scarcely read the record without concluding that the preponderance of the evidence was to the effect that plaintiff was considerably intoxicated at the time of this accident, which alone would establish the reason why he did not think of what he was doing when he got his head in the path of the descending elevator. However, nonintoxication of plaintiff has been assumed as the fact, and upon that assumption the case is determined adversely to appellant. The judgment of dismissal is affirmed, with costs.