Meloche v. Flowers, Incorporated

Butzel, J. Plaintiff’s decedent, Ralph Meloche, was fatally injured on December 24, 1930, at which time, according to plaintiff’s contention, he was in the employ of defendant Flowers, Inc. The boy was almost 17 years of age. He was bright and industrious, in full possession of all of his faculties, and had a fine school record. Defendant Flowers, Inc., was engaged in the floral business, at a shop on the northwest corner of East Grand River avenue and Farmer street, Detroit. The store is in the University Building, which occupies the easterly one-half of the property fronting on the north side of East Grand River avenue, between Farmer street on the east and Woodward avenue on the west. The building is a six-story store and office building, owned by defendant James E. Scripps Corporation. The ground floor is divided into a number of stores, with a space in the center used as a corridor or *389 lobby. At the end of the corridor are two electrically-powered elevators similar in appearance, structure and mechanism. The one towards the east, or Farmer street, is used for passenger purposes and is operated by an employee of the James E. Scripps Corporation, while the one towards the west, or Woodward avenue, is used for freight purposes by the tenants of the building and is operated by them, as well as by employees of the building company when called upon. A stairway is also conveniently situated east of the elevators, for the use of the tenants. The doors leading to the elevators are set in an ornamental steel enclosure in front of the elevator shaft, which is of sufficient width to accommodate the two elevators. The mechanism of the elevators is extremely simple. When the operator steps in and turns around, thus facing the Gfrand River front of the building, he finds a lever or control to his right, on the westerly side of the elevator, about three feet from the floor. When the lever or control is in the middle of the slot or groove,, the elevator comes to a stop. When the lever is moved to the east, or to the operator ’s left, the elevator ascends; when to the west, or the operator’s right, it descends. When the operator’s hand is removed from the lever, it automatically swings back to the middle or neutral, and the elevator, after going a short distance, comes to a stop. Flowers, Inc., was given the free use of a vacant room on the third floor of the building, directly in front of the elevator shaft, for a few days prior to Christmas, for the purpose of receiving and sending out plants. In order to go from the corner store to the third floor, it was necessary to go out into the street, enter the lobby of the building and take the elevator or stairway. *390 There is positive testimony to the effect that deceased was not in the employ of Flowers, Inc., on the day of the accident, hut was seeking an opportunity to work as an extra, assistant during the rush season before Christmas and in the meantime was visiting with some of the employees he knew. He had been previously employed by defendant for a few days prior to Mother’s Day earlier in the year. As the appeal is from a verdict directed in defendants’ favor, we must assume, in accordance with other testimony to that effect, that decedent was employed by defendant on the fateful day. That he was seen riding in the freight elevator by an officer of Flowers, Inc., was brought out by plaintiff’s attorney, whereupon the officer on cross-examination testified that when he saw decedent he directed him not to use the elevator. Objection was made to this testimony as being equally within the knowledge of the deceased, but the court admitted it for the time being. Since plaintiff first elicited the testimony on the subject matter, defendant was entitled to explain fully what had taken place. Bishop v. Shurly, 237 Mich. 76. According to the testimony of a fellow employee who plainly saw the accident, decedent, at about six p. m., brought the freight elevator up to the third floor immediately in front of the room occupied by Flowers, Inc. When he stepped out, he noticed that the floor of the elevator was about six inches above the hall level. He at once turned around, and with one foot on the floor of the hallway and the other on that of the elevator, he bent over and apparently took hold of the control, since his elbow was seen to move towards the right. He had evidently moved the control in the wrong direction, for the elevator began to ascend. Decedent hung onto the elevator *391 until his body came in contact with the grill work above the elevator opening, when he lost his hold and fell to the bottom of the shaft. He sustained severe injuries, from which he died later in the evening. Suit was brought by defendant’s father against both Flowers, Inc., and James E. Scripps Corporation. It is claimed that defendant James E. Scripps Corporation was negligent in constructing and maintaining an elevator not in accordance with the ordinances of the city of Detroit, which provide for inner locks on the hoistway doors, so designed and installed that the elevator cannot be moved from the landing without first closing and locking such doors; in not having the elevator run by an operator; and in not providing the elevator with automatic doors or gates so constructed as to open and close by the action of the elevator either in ascending or descending, as required by 2 Comp. Laws 1929, § 8327. It is further claimed that defendant Flowers, Inc., was liable in not furnishing plaintiff’s decedent with a safe place to work in, as well as for the failure to observe the ordinances and statutes in regard to the operation and proper maintenance of elevators. Defendants contend, however, that the city ordinances refer only to new elevators constructed since the adoption of the ordinance, or to those elevators as to which such alterations had been ordered by the elevator inspector; that other pertinent sections of the ordinance refer only to passenger elevators, and still others only to elevators having two entrances. Although it is true that the elevator was not constructed or equipped as required by 2 Comp. Laws 1929, § 8327, the failure to comply with a statute or ordinance does not fasten liability upon defendant James E. Scripps Corporation if the *392 plaintiff’s decedent was guilty of negligence which was a contributing, proximate cause of the accident. Blankertz v. Mack & Co., 263 Mich. 527. It is further claimed that liability should be imposed upon defendant Flowers, Inc., on the ground that it employed a minor under 18 years of age in a hazardous employment, without obtaining a permit or certificate in accordance with 2 Comp. Laws 1929, § 8326. The operation of an elevator cannot ordinarily be deemed to be a hazardous employment. Its operation appears to be as simple as that of driving an automobile. The statute does not apply to non-hazardous employment. Radic v. Thomas Jackson & Co., 178 Mich. 618, 625. There was testimony that while the elevator was normally operated by means of the lever or control in front of and to the westerly side of the elevator, it could also be operated from the basement by a person inserting a stick in a groove in the control board adjacent to the elevator shaft, and pushing it in the proper direction. Relying on the above fact, plaintiff advances the theory that when decedent re-entered the elevator for the purpose of bringing it flush with the hallway, someone in the basement must have inserted a lever in the manner described, causing the elevator to shoot upward. The difficulty with this claim is that it is unsupported by any evidence that anyone did move the elevator from the basement, and it is contradicted by the further fact that the elevator began to ascend only after decedent himself had entered it, with one foot on the elevator floor in front of the control and the other on the hallway, and after his elbow had been seen to move to the right. Reasonable minds must necessarily come to the conclusion that plaintiff’s decedent was guilty of *393 contributory negligence which was the proximate cause of the accident. As a rule, we do not pass upon any question not included in the statement of questions involved in appellant’s brief, but for fear that this case might be used as a precedent, we called for additional briefs, and shall consider another question not raised in the lower court nor in the statement of questions involved in plaintiff’s original brief. The defense of contributory negligence as between employee and employer is abolished by the workmen’s compensation act, except where, among other things, the accident is not sustained in the course of employment, or where the injuries are suffered because of the wilful negligence of the employee (2 Comp. Laws 1929, § 8407). As the verdict was directed for both defendants, Flowers, Inc., and James E. Scripps Corporation, we must, for the purposes of this discussion, regard as true the allegation of the declaration that plaintiff’s decedent was an employee of Flowers, Inc., and the defense of contributory negligence can no longer be interposed by an employer against his employee unless and except it appears that such negligence was wilful. 2 Comp. Laws 1929, § 8407. At the time plaintiff’s decedent met his fatal injuries, however, he was acting outside the course of his employment. He was not carrying any merchandise. He had been seen running the elevator by Mr. Berry, the manager of Flowers, Inc., who testified that he had told Meloche that he should not run the elevator, that he was liable to get hurt. This testimony of Mr. Berry’s was not contradicted. Plaintiff’s decedent was disobeying instructions by using the elevator. Moreover, when an employee wilfully fails to follow instructions, and his failure renders his employment unsafe and as a consequence he is *394 injured, it constitutes wilful negligence and bars recovery. Downs v. Fowler, 201 Mich. 659. The question may be raised whether the testimony of Mr. Berry was competent, because as an adverse witness he was testifying to matters equally within the knowledge of the deceased. He-was, however, first called by the plaintiff and fully examined as to decedent’s employment, the running of the elevator, etc. In response to plaintiff’s questioning, Berry testified that he had seen Meloche running the elevator. Plaintiff did not question him any further along this line and had the defendant not been allowed to examine Berry on this subject, his testimony would have had all the force of a direct admission that Berry had impliedly consented to decedent’s being on the elevator. See Fox v. Barrett’s Estate, 117 Mich. 162, 164. Plaintiff having thus opened the doors, waived the right to object to cross-examination. Gacesa v. Consumers Power Co., 220 Mich. 338 (24 A. L. R. 675); Rock v. Gannon Grocery Co., 246 Mich. 545. The judge was correct in directing a verdict for defendants and it is affirmed, with costs to the defendants. North, C. J., and Fead, Wiest, Bushnell, Edward M. Sharpe, and Potter, JJ., concurred. The late Justice Nelson Sharpe took no part in this decision.