110 Neb. 251 | Neb. | 1923
Action by plaintiff as administratrix to recover damages for negligence in causing the death of her husband, .Albert Kerwin. At the close of plaintiff’s testimony the court excused the jury and dismissed the case.
The proof established that about 1905 defendant Hoagland erected a building and leased same to defend-
In 1914, after the erection of the building, and the elevator shaft, the official building code of the city of Omaha was enacted by the city council. This code required all fire-proof buildings “hereafter erected” to have elevator shafts inclosed in fire-proof partitions, extending from the street level to the top of the building, and by another section provided that no wires, except such as necessary to operate or light the elevator, should be placed in the shaft of any elevator; declared such wires a nuisance, and required their removal on 30 days notice by the building inspector.
About 10:30 o’clock on the morning of January 3, 1920, deceased went to the second floor of the Thompson, Belden & Company store tó test the circuit, and a descending elevator cage struck him on the top of the head producing almost instant death. No one saw the accident, and the manner of his death must be deduced from the circumstances. At that time the place was well lighted. The elevator Avas running in the; usual manner, and by looking at the Avire cables it could be plainly seen Avhether the elevator cage Avas belo-w or aboAre the place. The deceased did not tell any one in the building of his presence or purpose, and no
Appellant alleges that there is sufficient evidence to require the submission of the case to the jury, and that the court erred in refusing to do so. The negligence alleged, is the failure of the defendants to inclose the elevator shaft from the floor to the ceiling; and permitting the Avires of the A. D. T. Company signal system to be placed in the elevator shaft; that the Avires were taken doAvn from their former location and the meAV shelving placed so as to require the lineman to work near the open elevator shaft; that defendants kneAV, or should have knoAvn, that A. D. T. Avould Avork at the place of the accident, and that each and all of these, alleged acts of negligence required the submission of the case to the jury. The petition sets out the alleged acts of negligence in great detail, but the foregoing appears sufficient to cover all that is necessary. The district court found that “the unfortunate death of the deceased Avas brought about by his own act of negligence in alloAving a portion of his body to be in this eleAmtor shaft
Strong emphasis is placed by appellant on the alleged violation of the Omaha ordinance, the building code, which, it is claimed, constitutes negligence per sc, and the principle announced in Stevens v. Luther, 105 Neb. 184, is invoked, that the failure to perform a mandatory and affirmative duty imposed upon owners of property by statutes and ordinances is negligence per se, and if any person to whom the -duty is owed, or for whose protection the law was enacted, is injured in consequence of’such violation, a case is made. Taking up, first, the provision of the ordinance which forbids the placing of wires in an elevator shaft. Under the terms of the ordinance such wires are directed to be removed on notice. There is no proof of notice to either defendant to remove them, and for that reason appellees insist that no negligence can be imputed to them. But, aside from the question of the legal duty, if any, resting on the defendants, or either of them, by virtue of the ordinance, there does not seem to be any relation between the position of the wire in the elevator shaft and the injury to deceased. However glaring an infraction of the ordinance may have been committed or permitted by the defendants, unless the placing of the wires contributed to cause the death, the defendants, of course, are not answerable for it. Nowhere does it appear in the evidence, either by direct testimony or by any reasonable inference from the proved facts, that deceased was injured because the wires ran up the elevator shaft. The mere fact that the test station by deceased’s own choice was made near the elevator shaft does not tend to prove that the location of the wires in the elevator shaft had any direct relation to the accident. Deceased was not required to work near the elevator shaft. He chose the place of work. As a convenience to himself he selected the place near the elevator. Neither of the defendants
The building Avas erected by defendant Hoagland and occupied by Thompson, Belden & Company before the ordinance Avas enacted. The ordinance does not include buildings already erected, Avhere it proAides for the manner of inclosing elevator shafts; the Avording being: “In all fire-proof buildings hereafter erected, all elevators, whether passenger, freight or dumb-waiter elevators, shall be inclosed in fire-proof partitions,” etc. It is probable that the main purpose of these provisions Avas to guard against the spread of fires, but Avhether it Avas for that purpose or to prevent persons from being injured, or 'both, Ave need not stop to consider. The ordinance by its plain terms does not apply to the building in question, so it lacks the requisite legislative “mandatory and affirmative” or compulsory obligation to place it Avithin the rule announced in Stevens v. Luther, supra,. Furthermore, it may be. said of the elevator shaft, as has been said of the Avires, that nothing appears in the evidence that indicates any necessity ‘for the deceased to work in the elevator shaft, or even near it. The shelf on top of the Avail case was íavo or three feet wide, giving safe and ample room for deceased to Avork. He knew, or must have knoAvn, that the elevator was being continuously operated, and could definitely tell Avhether the cage Avas abovn or beloAv him, and to place his head in the shaft beloAv a descending elevator Avould be extremely hazardous. It follows that the maintaining of the elevator shaft was not the proximate cause of accident.
Appellant urges the rule that the presumption is, in
The trial judge rightfully held that the deplorable accident was due wholly to the negligence and fault of the deceased, and the judgment of dismissal must be
Affirmed.