180 So. 741 | Miss. | 1938
The only question presented for decision by this appeal is whether the court below erred in refusing to grant a peremptory instruction on behalf of the appellant.
The appellee was seriously injured when he fell to a depth of from 16 to 20 feet into an unguarded elevator *748 shaft from the second floor of the appellant's mercantile store, in the city of Jackson, where he was employed as stock man to open up and carry merchandise from the stock room down to the first floor of the building as the same was needed to replenish the sales counters in the store. In going to the stairway from the place where he obtained the merchandise, it was necessary that appellee should pass within a few inches of the elevator shaft, where a wooden gate was provided for the purpose of closing the entrance or opening thereto. This gate worked up and down in grooves, and would usually be raised about 6 feet from the floor when freight was to be unloaded at the second floor. The top part of the gate would then frequently become wedged or stuck in the grooves and could not be lowered without considerable difficulty, so as to close the opening into the elevator shaft — in fact, it was often necessary for the elevator operator to be assisted by some other employee in order to prize the gate loose and pull it down. This condition had existed for several months; and, according to the testimony of some of the witnesses for the appellee, the manager of the store had personally assisted them occasionally in getting the gate prized loose in order to close the opening from the passageway into the elevator shaft. Frequent complaints had been made to him regarding the matter; and the proof disclosed, although not without conflict, that the gate was left up about 50 per cent. of the time, due either to the difficulty experienced in trying to close it when it was wedged or stuck or to the negligence of the employees in failing to close it at such times as it would not be wedged or stuck in the grooves; that the manager had instructed the employees to keep the gate closed when the elevator was not at the second floor; that it required three or four minutes for the manager to close the gate that day shortly after the accident, and he had made no effort to remedy the difficulty in order that it might be closed without difficulty. *749
The declaration alleged that Dave Boykin, who the evidence shows was a fellow servant, was the last person to use the elevator before the appellee received his injury, and that he carelessly and negligently failed to close the guard gate in question; but the declaration further alleged, in substance, that the appellant owed the appellee the duty of furnishing and maintaining a gate to the elevator that could be raised and lowered without great difficulty, and that the appellant knew, or should have known by the exercise of reasonable care, that a gate which would become wedged and so tight when raised that it could not be lowered without great difficulty was likely to be left open by employees on account of such difficulty in lowering the same; that the "gate was often negligently left open, due to the difficulty in closing the same and to the negligence of the said Dave Boykin"; that appellant failed to furnish and maintain sufficient light in the place where the appellee was required to work, and especially along the passageway near the elevator shaft; and, further, that the negligence of the said Dave Boykin, as well as the defective condition of the guard gate and the failure of the appellant to provide sufficient light near the elevator, all contributed to rendering the place where the appellee was required to work not reasonably safe; and alleged a failure to exercise reasonable care in that behalf.
In support of these allegations the appellee introduced, among other witnesses, the local manager of the store of appellant. No testimony was offered by the appellant as to the condition of the premises, and such conflict as appears in the testimony arises, therefore, out of the evidence offered by the appellee. There was no direct testimony as to whether Dave Boykin left the elevator shaft open on the occasion complained of because of any difficulty experienced by him in trying to lower it at that time, or as to whether his failure to close the gate was due solely to his negligence; but we are of the opinion that the evidence was sufficient to warrant the *750 jury in finding that the appellant knowingly permitted, even though it may have been under its protest, a negligent habit, on the part of the employees, of leaving the gate to the elevator shaft raised and opened a great deal of the time, either on account of the difficulty experienced by them in closing the gate, or on account of their negligent failure to close the same; that allowing this negligent practice to continue rendered the passageway not reasonably safe for the use of the appellee and others when passing near the elevator shaft in the performance of their duties, and constituted a breach of duty on the part of appellant in that respect, regardless of whether the failure to keep the opening of the elevator shaft guarded was due to the difficulty of lowering the gate or to the negligence of a fellow servant.
In the recent case of Albert v. Doullut Ewin, Inc. et al., Miss.,
In the case of Sea Food Co. v. Alves,
In Finkbine Lumber Co. v. Cunningham,
In Gulf, M. N.R. Co. v. Brown,
It is urged by the appellant that the proof fails to show any causal connection between the defective condition of the guard gate and the failure to lower the same and close the opening into the elevator shaft on the particular occasion complained of. That is true, unless such causal connection can be reasonably inferred from the natural human reaction of a servant to the great difficulty of closing the gate and the consequent temptation to take chances that no harm will result. As to whether the intervening failure of the fellow servant to close the gate might reasonably have been anticipated from the fact that it could be closed on many occasions only with extreme difficulty, so as not to interrupt the original negligence of the appellant, would ordinarily be a question for the jury. However, it is not necessary that we rest the decision of this case on the affirmative of that proposition. The evidence, although conflicting, was sufficient to go to the jury on the question as to whether the appellant had exercised reasonable care to discharge its nondelegable duty of keeping the elevator shaft closed, or to provide sufficient light in that immediate locality to avert the danger of employees falling into the same. Of course, the semidarkness of the place, as testified to by the appellee, and the alleged failure to provide, or the refusal in the interest of economy to permit the use of, sufficient light, is material only to show the degree of care required on the part of the appellant to see to it that the elevator shaft was kept closed when employees were required to pass close by the opening in the discharge of their duties.
We are of the opinion that the refusal of the peremptory instruction was proper, and that the judgment should be affirmed.
Affirmed. *754