Seavers v. Lisner
1913 U.S. App. LEXIS 1993
D.C. Cir.
1913
Check Treatment
Mr. Justice Van Oesdisjl

delivered the opinion of the Court:

It .is urged by counsel for plgintiffifhat the proximate cause *188of the accident was the negligence of the operator in not giving-notice of the descеnt of the elevator car. The place provided for plaintiff to work was in the pit outside of the elevator shaft. Large pulley wheels, which turned whеn the car was moving, were in full view inside- of the shaft. A plunger, which ascended and descended with the movement of the car, was in the center of the shaft. The place was lighted with electricity sufficiently, at least, to enable plaintiff to perform his work. Nothing appears in the record from which the inference can be ■drawn that the operator was advised of the necessity of plaintiff projecting any portion of his body inside of the elevator shaft. Neither is it apparent that the operator could, from ‍​‌‌​​​​‌​​​​​​​‌​​​‌‌‌‌​​​​‌​​‌​​‌‌‌‌​‌​‌‌​​‌‌‌‌‍his position in the car, observe the position of plaintiff immediately before the accident occurred. The car was inclosed with a solid iron casing for a distance of 4 feet from the floor, which would obstruct any view of plaintiff from the car, sinсe plaintiff’s position was almost directly under the side of the car. The angle of vision was too acute to enable the operator to observe plaintiff through the network inclosing the car above the solid casing. Plaintiff not being in defendant’s employ, defendant’s liability is limited to the negligent operation or defective construction of the elevator. The accident was not the result of any defect in the elevator, and we are not convinced that it was due to the negligence of the operator.

We agree with the learned justice below that the contributory negligence of plaintiff was the proximate cause of the accident. In the full possession of his faculties, after working in the pit for a period of about four hours, seeing the car descend and ascend a' number of times, warned of the danger inside of the shaft, and with the moving pulleys and plunger in full view, he recklessly placed himself in the position in which he was caught and injured. Assuming, 'for the sake of argument only, that defendant was guilty of negligence, the accident would then be the result of the concurring negligence of both parties, and consequently there could be no recovery.

The doctrine of the last clear chance, as apрlied in the railway ‍​‌‌​​​​‌​​​​​​​‌​​​‌‌‌‌​​​​‌​​‌​​‌‌‌‌​‌​‌‌​​‌‌‌‌‍cases cited, has no, analogy to the present-.case. In the *189operation of a railway train, the engineer or motorman is in a position from which he has full view of the track; hence the rule that, though a person may be negligently upon the track, if it is within the power .of the engineer or motorman, by the exercise of reasonable care, to avert the accident, it is his duty to do so, and if he fails in that duty, and an accident occurs, the contributory negligence of the injured party will not furnish a valid defense. Here, as has been suggested, the operator was not in a position to observе, by the exercise of reasonable care, the danger to which plaintiff exposed himself. Hence, the contributory negligence of plaintiff, as shоwn by the testimony of himself and his witnesses, leaves no issue for the jury.

» Counsel for plaintiff have cited cases to the qioint that where an employee is callеd upon to work in a position of danger, if, for a moment, while in that position, he becomes so absorbed in his duties as to be oblivious of the danger, and is injured, thе question of his contributory ‍​‌‌​​​​‌​​​​​​​‌​​​‌‌‌‌​​​​‌​​‌​​‌‌‌‌​‌​‌‌​​‌‌‌‌‍negligence is one for the jury. In all of those cases, the employee was performing a duty assigned by the employer which required such immediate and instantaneous attention as forbade his observing the dangerous agency which caused the injury. In the leading case of Northern P. R. Co. v. Everett, 152 U. S. 107, 38 L. ed. 373, 14 Sup. Ct. Rep. 474, where a brakeman was injured while coupling a car which was making a flying switch, the court said: “It appeared that Everett was a yoxxng and inexperienced man; that this was his first service in attempting to couple a car with a projecting load; the duty he was expected to perform gave him no time to narrowly inspect the approaching car or to observe its condition. His attention was not called to the projecting timber until he was in the very aсt of making the coupling, and when his effort to avoid it was too late. He had first to throw the switch to receive the approaching car, and then rxxn ahead and get ready to pxxt the pin in the drawhead. It was shown that there xvas no pin in the drawhead of the stationary car, and he was obliged to pick one up and put it in place ready to make the coxxpliug. These duties gave him no opportunity to closely scan the car that was in rapid motion bеhind *190liim. In such circumstances, when the whole transaction is the work of a moment, and when his duty calls upon him to act promptly, a man cannot be expected to act with circumspection. At all events, we think that, in view of the fact that the ‍​‌‌​​​​‌​​​​​​​‌​​​‌‌‌‌​​​​‌​​‌​​‌‌‌‌​‌​‌‌​​‌‌‌‌‍car was improperly loaded; that Everett ivas new and inexperienced in such work, and that he was required to perform the double duty of throwing the switch and making the coupling, the case was an appropriate onе for submission to the jury. ->:• * * n js not easy, in a subject of this kind, to lay down unbending rules, and conflicting eases can readily he found. But, without pursuing the subject further, we are satisfied that, in thе present case, there was no conclusive evidence of a want of due care on the part of Everett in not observing the projecting timbеr while he was in the discharge of his duty, and while his attention was directed to the work in which he was engaged.”

The cases cited are to the same effect, thаt, where the duty imposed upon the employee is such as to require his undivided attention in its immediate performance, and where the time is so short that proper attention to his duties may reasonably cause him to overlook the impending danger, the question of his contributory negligence should be submitted to the jury. In оther words, if his duties are so important and pressing, ‍​‌‌​​​​‌​​​​​​​‌​​​‌‌‌‌​​​​‌​​‌​​‌‌‌‌​‌​‌‌​​‌‌‌‌‍and of such engrossing character, as to momentarily render him oblivious of the danger and incapable of exercising his information as to the existence of the dangerous instrumentality, it cannot be said., as matter of law, that he was guilty of negligence. In all such cаses, however,- it must appear that the instrumentality causing the injury was negligently maintained or operated by the employer or his agent.

As suggested by the supremе court in the case above cited, each case must turn upon its own facts in determining whether the question of the employee’s negligence is one of law or of fact. None of the conditions essential to carry the cases cited to the jury are here present. Plaintiff was performing the ordinary work of a bricklayer. He was not in the employ of defendant, and hence’ not acting under his orders when he was injured. The work he was performing when injured requirеd *191no such haste or engrossing attention as to reasonably cause him to forget the dangerous position in which he had voluntarily placed himself. He had bеen warned by Stewart that it was dangerous to project his arm or head within the shaft when the car was in motion. For four hours he had observed the operatiоn of the elevator. He testified that, at other times, when projecting his arm or head into the shaft, he had looked up to see if the car was descеnding. He was warned in this instance by the pulley wheels and plunger that the car was moving, and, with no duty that required such immediate attention inside of the shaft as to justify any risk, he negligently and thoughtlessly placed himself in a position to receive the injury. The judgment is affirmed, with costs. A ffirmed.