130 Va. 434 | Va. | 1921
delivered the opinion of the court.
J. F. Alvis, while in the employment of Morris & Company (incorporated), fell into an unguarded elevator shaft in that company’s building and received in juries for which he brought this action. There was a verdict in his-favor for $12,500, and thereupon the court entered the judgment under review.
Morris & Company is a corporation extensively engaged in packing and selling meats, and has a branch house in Lynchburg. Alvis had been working for the company about five months. His principal business was that of city salesman and collector, but it was further his duty at times and as occasion required to assist with various kinds of work in the house. He and other employees were occasionally there at night in the performance of some of their duties and in the regular line of their employment.
The accident occurred on the night of October 26, 1917. On the afternoon of that day one Ross, a traveling auditor for the defendant, had come to Lynchburg to check up- the business, and not having completed his work during the afternoon, he and Alvis came back to the building that night. There is a contention on behalf of the defendant that Alvis was there voluntarily, and not in the line of his employment, and another contention that he was there temporarily in the capacity of manager, but we think the evidence is otherwise.
The first floor of the building consists of three mgin compartments, a shipping room in front (reached by the
According to the testimony of the plaintiff, in some respects very much in conflict with the testimony of other witnesses, but accepted by the jury, the circumstances of the accident were substantially as follows:
When Ross and Alvis went back to the office on the night in question, they entered the shipping room through the main entrance, and found their way through the shipping room into'the office by means of the reflection of a light from that compartment, there being a glass partition between the office and the shipping room. The electric lamps or bulbs in the office were insufficient for their purposes, and Ross suggested that they must have more light. Thereupon both of them started in search of other bulbs which they hoped to find in some other compartment. They went first to' the meat room following the course above indicated, the plaintiff feeling his way around the wall until he was sure that he had passed the elevator opening. Failing to find the bulbs they wanted in the meat room, they turned back, intending to go to the cellar where they thought they
There had originally been a door to the elevator shaft on the shipping room floor, but this door had been broken off or displaced for a year or more, and was not in use at any time after Alvis came there to. work. . Instead of replacing the door, the defendant adopted the expedient .of using the elevator, when not in use for elevator purposes, to close the shaft by placing and leaving it so that the floor thereof was even with the floor of the shipping room, thus practically extending the floor of the .shipping room into the elevator shaft, and thus obviating the danger resulting from the displaced door. In other words, the rule of the company, as a part of its plan for maintaining the first floor of its building in a safe condition, required that the elevator, when not in use, should be left so that the floor thereof would be flush with the office floor. The evidence is not entirely clear as to whose business it was to see that the elevator was left in this position when not in active use, but it was a freight elevator, operated from time to time by various employees, and the fair inference appears to be that this duty devolved upon any employee who had occasion to operate the conveyor.
The plaintiff, Alvis, was fully apprised Of all of the foregoing conditions. The absent door, the rule or custom of keeping the elevator, when not in use, on the office floor as a substitute for a door, and the insufficiency of the lighting system were all conditions which had prevailed ever since he began work with the company. He testifies about all of these fasts, and his testimony shows that he was thoroughly familiar with them all, saying particularly with reference to the lights, as showing that he was often there at night, that “there never were enough bulbs for all of the place and we shifted them about from one place to another when we worked at night.” This statement was in reply to a question by his counsel as to how long that condition had prevailed; and he further testifies that if he ever made any complaint to the company about that condition, he does not remember it.
The declaration charges the defendant with negligence (a) in permitting the door to remain broken and displaced, (b) in failing to furnish sufficient lights, and (c) in failing to have the elevator in proper position at the time of the accident; and says that “by reason of the said several negligences operating severally and concurrently the position of defendant’s employees while using the said ground floor and the said several rooms or compartments thereof including said office room in the night time (the place was caused) to be needlessly, extraordinarily and negligently dangerous.”
“The court instructs the jury that it is the duty of the master to exercise ordinary care to provide a reasonably safe place for his employee to work while in the discharge of his duties within the scope of his employment, for the protection of the employee against danger of accident and injury, having due regard to the nature of the work to be performed by the employee and the dangers naturally incident thereto; and a failure to perform this duty would be negligence. This duty is unassignable and if intrusted to any employee the master is responsible for the manner Of its performance by such employee.”
The last sentence of this instruction was misleading and erroneous as applied to the facts of this case. The plaintiff proved a case in which the defendant had adopted, with the plaintiff's knowledge and acquiescence, a substituted and perhaps originally questionable method of guarding the elevator shaft. The case in this respect is, therefore, exactly what it would have been if the original method of protecting the shaft by a door had remained in use. The detail of closing the shaft, like the closing of a door or the manipulation of other instrumentalities in a common employment, was not an unassignable duty. ( See Labatt M. & S. (2nd ed.), sec. 1540, and cases cited, particularly Mellen v. Thomas Wilson Sons & Co., 159 Mass. 88, 34 N. E. 96; Madigan v. Oceanic Steam Nav. Co., 178 N. Y. 242, 70 N. E. 785, 102 Am. St. Rep. 495; Kennedy v. Netherlands Am. Steam Nav. Co., 76 N. J. L. 618, 72 Atl. 382; Miller v. Centralia Pulp & Water Power Co., 134 Wis. 316, 113 N. W. 954,
A case very much, in point upon the general principles here involved is, Pawling v. Hoskins, 132 Pa. St. 617, 19 Atl. 301, 19 Am. St. Rep. 618, in which the court said: “The trapdoor was used only by the engineer, who was under strict orders from his employers to close it behind him whenever he passed through it. He was the first to enter the building in the morning and the last to leave it at night. The plaintiff knew the location and use of the door, and passed it several times each day for six months or more before the accident. On the morning of November 28, 1887, the plaintiff came to his work as usual, and passing rapidly through the hall, fell into the opening at the trap-door. The engineer had passed into the building a few minutes before, and the evidence indicates that he was the only person who had done so prior to the plaintiff’s arrival. He says he shut the trap-door behind him; but this is impossible, if, as the plaintiff' alleges, it was open when he reached it.
“But the question to be considered is, what did the defendants do or leave undone, in violation of their duty to the plaintiff? In what respect were they negligent? ' It cannot be said that they were negligent in permitting the plaintiff to pass through the hall without any knowledge of the existence of the trap-door, for he testifies that he knew all about its existence and use. There was no negligence in failing to instruct the engineer in his duty to keep the trap-door closed, for it appears in proof, and is not questioned, that such instructions were carefully given. There was no negligence in the manner of its construction. It was safely built, and when closed, prevented the possibility of accident to those passing through the hall. There was
This instruction is correct in the abstract, but misleading and erroneous under the evidence, and particularly so in view of the error contained in Instruction No. 1.. The latter instruction told the jury, by undeniable implication, that it was the defendant’s non-assignable duty to keep the elevator floor in proper position. Instruction No. 2. aggravated this error by telling them that the plaintiff had the right to assume that this erroneously alleged duty had been performed. This was the vital error in the instruction, but it would have been improved by a further qualification showing affirmatively, and without the aid of other instructions, that the rule asserted by it could have no application to the absence of sufficient lights, because the evidence showed that the plaintiff had long known and had not complained of that condition.
The court refused to give two of the instructions asked for by the defendant. As to these, what we have already said about instructions one and two given for plaintiff will be sufficient to indicate our views, if the case is tried again.
Whether his assumption of the risk of injury from the negligence of the two negro men who left the elevator out of place follows as a matter of law from the evidence in the record is a question upon which we do not express any final conclusion. The case was tried below and was originally presented to this court in such a way as to indicate that both parties probably regarded the question as one within the province of the jury. We approve the policy and purpose of sections 6251 and 6365 of the Code, looking to a speedy determination of litigation and the rendition of a final judgment wherever it is clear that, upon the facts before it, the court can by such order attain the ends of justice. In this instance, we are not sure that these ends could be attained by a final order, but, viewing the case as a whole, we are of opinion that it should be remanded for a new trial, and an order to that effect will accordingly be entered.
Reversed.