O'Rourke v. Woodward

GARDNER, J. The foregoing statement of the case suffices as a general outline of the issues upon which the cause was submitted to the jury, and the questions presented for review on this appeal. The only assignments of error argued in brief of counsel for appellant relate to the action of the court in giving the charges a,t defendant’s request which are set out in the statement of the case. [1] The plaintiff was a deliveryman or messenger for the Southern Express Company, and at the time of the unfortunate accident was engaged in delivering packages intended for the tenants occupying the public office building owned by the defendant. He was required, as was the custom, to use the freight elevator when delivering such packages or freight. We think it quite clear that there was established under the facts as shown in this record the relation of carrier and passenger between the plaintiff' and the defendant. Morgan v. Saks, 143 Ala. 139, 38 South. 848. It is insisted by counsel for appellant that there was error in giving charge 16 at defendant’s request for the reason that the liability of the owner of a freight elevator to a passenger, lawfully and rightfully upon it, is measured by the same rules applicable to the owner of passenger elevators, and that such owner is not only required to exercise the highest degree of care in the operation of the elevator, but also in its equipment, citing in support of this contention the case of Springer v. Ford, 189 Ill. 430, 59 N. E. 953, 52 L. R. A. 930, 82 Am. St. Rep. 464, and Beidler v. Branshaw, 200 Ill. 425, 65 N. E. 1086. In Lawrence v. Kaul Lbr. Co., 171 Ala. 300, 55 South. 111, speaking to a situation somewhat analogous to that here presented, the court said: “When, however, the passenger chooses to be transported on a train, not adapted to passenger service, such as a freight or a logging train, while he does not waive the carriers’ duty of due care with respect to his safety, he does waive all such precautions, whether in equipment or operation, which are inconsistent with the ordinary use and conduct of such a train, and cannot expect the carrier to change or adapt his service to the extraordinary requirements of a common carrier of passengers. In other words, he assumes the risk of injury from such accidents as are incident to such trains when equipped and operated in the usual way.” See, also, in this connection, So. Ry. Co. v. Crowder, 130 Ala. 256, 30 South. 592; So. Ry. Co. v. Burgess, 143 Ala. 364, 42 South 35. The case of Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S. W. 1062, 8 L. R. A. (N. S.) 929, from the Supreme Court of Missouri, is very much in point, the plaintiff in that case having suffered his injuries while in a freight elevator accompanying his freight, as was 'the general custom. The court in that case, recognized the rule that the relation of passenger and carrier existed, and that such *268 relation placed the duty upon defendant to exercise the highest degree of care and diligence in and about the operation of the elevator to prevent injury to the passenger, just as is required of common carriers in the operation of regular passenger trains; with the difference, however, that the passenger submits himself to the inconvenience and dangers necessarily attending that mode of conveyance. After reviewing a number of cases, the court to make more clear its position, said: “From the cases both here and elsewhere it appears that, in taking passage upon a freight train, or a freight elevator, the passenger assumes the usual hazards attending that mode of conveyance, but not those arising from the negligence of the company, which are not usual and incident to the mode of conveyance. If the freight train was ditched by defective track, and this resulted in the failure to safely transport the passenger, the company would be liable. So, too, if the accident was the result of defective machinery, or inefficient conduct of the servants operating the train. In other words, the same degree of care as to the passenger is required as if he were on a passenger train, save and except the passenger assumes the usual and ordinary inconveniences, and the additional hazards incident to the mode of conveyance. So with a passenger in a freight elevator. Such passenger cannot complain of the usual inconveniences incident to such a conveyance, nor can he complain of the hazards usually incident to that mode of conveyance. He can, however, complain of the negligent operation of the elevator, or of the defective machinery and appliances used in the operation thereof, and in such cases the doctrine res ipsa loquitur applies, a,s is usual in cases of passenger and carrier.” That case also cites from the Supreme Court of Michigan, Hall v. Murdock, 114 Mich. 233, 72 N. W. 150, where the court said: “When one knows that the elevator is designed for freight alone, he must be held to know that it is not equipped with the same, regard for safety that a passenger elevator is or should be. * * * When, therefore, one is permitted or invited by the owner to ride upon a freight train or elevator, such owner does not guarantee that either is equipped , with the most approved appliances in use upon those carrying-passengers. * * * ” An interesting note upon the subject is to be found in 2 L. R. A. (N. S.) p. 744, as a note to the case of Edwards v. Manufacturers Bldg. Co. We have read with care the case of Springer v. Ford, supra, from the Supreme Court of Illinois, also cited in 52 L. R. A. 930, and relied upon by counsel for appellant. We are not persuaded that this 'case supports the contention of appellant to the effect that the 'equipment of a freight elevator upon which passengers are permitted to ride in accompanying their freight must be the same as is required in the proper construction of elevators used for passengers only. Indeed, we think this is clearly demonstrated in the subsequent case from the same qourt of Beidler v. Branshaw, supra, wherein the casé of Springer v. Ford, supra, is cited, the court using the following language: “The law is well settled in this state that persons operating elevators in buildings for the purpose of carrying persons from one story to another are common carriers of persons, and are required to exercise the highest degree of care and diligence in and about the operation of such elevators to prevent injury to passengers being carried thereon, and that the rules governing the liability of persons owning and operating passenger elevators in buildings apply to persons operating freight elevators when a person is rightfully upon such elevator as a passenger, and .that while, from the necessary construction of a freight elevator, there cannot, in the nature of things, be the same immunity from peril upon a freight elevator as upon a passenger elevator, still the same degree of care must be exercised in the operation of each class of elevators to protect persons from injury who are thereon as passengers.” There is no insistence that the elevator here in question was not properly guarded and properly constructed as a. freight elevator, but it was not equipped for the safety of passengers, as is a passenger elevator. [2, 3] The plaintiff had freight for delivery, and to accompany the same he took passage on the freight elevator, and while this constituted him a passenger and required of defendant the exercise of the highest degree of care and diligence in the operation and management of the 'elevator for his safety, yet we think the above authorities disclose that he assumed the risk and inconveniences incident to such a conveyance, and that the negligence of defendant could not be predicted upon the failure to equip the freight elevator the same as a passenger elevator should be equipped. Upon the same reasoning, of course, the defendant had the right to carry on the elevator the warehouse trucks which seem to have been the cause of the accident. If, however, the trucks were so negligently placed in the car as to be caused to fall by the vibration of the car, and the injuries suffered by the plaintiff proximately resulted therefrom, or if the car was so negligently operated as to cause the trucks to fall — and this without contributory fault on the part of plaintiff — he would be entitled to recovery. [4, 6] If the accident was the result of plaintiff’s sitting down upon the trucks, with his feet upon the bottom rungs, thus causing the trucks to carry him into the open space between the floor of the elevator and the ceiling of the eleventh floor, as contended by the defendant, then plaintiff on account of this contributory negligence, would not of course be entitled to recovery. These were the issues of fact presented for the jury’s determination. The defendant insisted that plaintiff deliberately sat down upon the .trucks, and plaintiff insisted that he did not touch the trucks. There was no evidence indicating in the least that plaintiff unintentionally touched the trucks, or that any one else disturbed the trucks in the slightest. Counsel for appellant insists that a number of the charges for the defendant, viz. X, J, K, C, and F, were improperly given, *269 for that they pretermit the theory that the plaintiff, or some other person on the car might have unintentionally come in contact with the trucks. Aa previously stated, however, the issues of fact were squarely presented for the jury’s determination, either that the trucks were negligently placed on the car so as to cause their fall by the unusual vibration thereof, or else were caused to fall by the negligent operation of the car, or, as contended by defendant, fell on account of the deliberate act of plaintiff. There being, therefore, no evidence indicating that they were caused to fall otherwise, we are of the opinion the charges referred to cannot be condemned so as to reverse the cause for pretermitting these theories or suppositions which are unsupported by any tendencies of proof. The oral charge of the court we think clearly demonstrates that the above-stated issues of fact were properly submitted to the jury, and by them clearly understood. We need not review every charge separately. What we have here said shows our conclusion that there was no reversible error in the action of the court in giving any of the charges requested by the defendant, and set out in the statement of the case. The judgment of the court below will accordingly be affirmed. Affirmed. ANDERSON, O. X, and McCLEDDAN and ■SAYRE, JJ., concur.