50 Neb. 490 | Neb. | 1897
The plaintiff, by his next friend, instituted this action in the district court of Douglas county to recover of the defendants damages which he alleged were caused by injuries to him as the result of negligence on the part of the defendants. The amount .claimed was $15,000. It was stated in the petition that the defendants were the owners and managers of a five-story building in the city of Omaha, the rooms of which, above the ground floor, were occupied and in use as offices by various tenants; that there was a passenger elevator maintained and op
There is no conflict in the evidence as to the injuries to plaintiff, or the conditions, facts, and circumstances under which they occurred. The evidence disclosed that there was a stairway by which persons could go to or come from any of the floors of the building, and which was contiguous to the elevator shaft, as was stated by plaintiff in his testimony:
Q. How near was the stairway to the elevator?
A. Runs right around the elevator, close to it.
Q. Is that the way it goes from the ground floor clear up?
A. Yes, sir.
On and above the third, and extending to the fourth floor, this being the portion directly involved herein, separating the stairway space from that of the elevator shaft, was a wainscoting, or board partition, which, from.the floor of the third story, was forty-five inches high; from the top of the first step of the stairway, going to the story above, or fourth, was thirty-eight and one-half inches high, and from the top of the second step, and all intervening ones between the second step and the landing above, was thirty-six inches in height. In the further portion of the space between the stairway and the elevator shaft, and above the partition we have just described, between the third and fourth floors, there generally appeared a diamond-shaped wire screen, which, on the day the plaintiff was injured, had been removed to be painted, there being a man there at work under a contract to clean and paint or varnish the elevator shaft, stairway, etc. The plaintiff was, and had been for some three months, in the employ of a physician whose office was situate on the third fioor of the building, and had very frequently used the elevator in going up to the office or down to the lower
Q. When the wire screens were taken out, as you have told that day, what was done with them?
A. They were put at the right of the stairway as you go up at the left hand side.
In regard to the weights attached to the elevator he stated:
Q. Now tell the jury just where they come down and how many of them there are.
A. There was a piece up here, a plank on each side and there the iron weights slid up and down. There was eight of these big iron weights.
Q. And when they came down how close to the rail of the stairs did they run?
A. Came about a couple of inches.
He further stated that at the time of the injury he did not know of the elevator weights.
The plaintiff was, at the time he was injured, between sixteen and seventeen years of age and was, it was stated by one of the doctors who was testifying in respect to plaintiff’s condition and appearance before the injury, “a remarkably bright, clean, healthy, active, energetic, g-enial, pleasant young fellow.” But this is immaterial. No question has been raised as to youthfulness and consequent lack of discretion on the part of plaintiff. A few minutes before the noon hour of the 13th of January, 1893, the plaintiff was in the office of the physician, his employer, on the third floor of defendants’ building. The doctor was out of the office and building and the plaintiff was evidently expectant of his return. However this may have been, the plaintiff left the office rooms through a door which was, relatively to the elevator, immediately across the hallway, stepped over to the elevator shaft, passed the wire screen, which, as we have before seen,
As we view the proper final disposition of this action, we need not now consider and settle the questions of the duty of landlords to tenants and their employes, or whether proper care would have required that the elevator in defendant’s building, during the time of the painting of the shaft, should have been stopped, and not operated while the screens were out of place and until replaced, for we feel forced to the determination that the evidence discloses such want of ordinary care on the part of plaintiff, under the facts, circumstances, and conditions existent and known to him at the time of his injuries, as constituted his acts contributory negligence and without which the injuries would not have been sustained. This was sufficient to bar his recovery. The defendant knew that the elevator was being operated, he had been riding in it that day, and his direct purpose in looking into the shaft was to see the elevator during its trip upward, and whether the doctor was a passenger. He knew of the wire screens which usually formed a part of the enclosure of the elevator shaft, and had seen them removed but a very short time before, temporarily, to be painted, and had watched the progress of the work. He knew the use for which the elevator shaft was prepared and intended, and he was making a use of it for which it was never intended and to which he possessed no right or privilege, and which was dangerous, against- which it was usually guarded in all parts by the screens. In order
It is urged that the question of whether or not there was contributory negligence on the part of plaintiff should have been submitted to the jury. The undisputed facts were such, we think, that different minds might not reach different conclusions or draw different inferences from them in regard to the plaintiff’s want of ordinary care and prudence, and the court did not err in not submitting the question to the jury and, on motion of counsel for defendants, charging that body to return a verdict favorable to defendants. In the opinion in the case of Slayton v. Fremont, E. & M. V. R. Co., 40 Neb., 840, appears the following quotation from section 2267, Thompson on Trials, in reference to an instruction such as was given in the case at bar“ £The demurrer to evidence used in the ancient common-law practice seems to have passed, for the most part, out of use in American jurisdictions. In the place of it the defendant moves for a nonsuit, or requests the court to give a peremptory instruction to the jury to return a verdict for the defendant. In either case the effect is substantially the same as a demurrer to the evidence under the ancient practice. An order of non-suit, or a peremptory instruction given in compliance with such a motion, does not undertake to decide any question of fact, but simply pronounces the law arising upon the evidence, admitting the same to be true. In
Affirmed.