Bullock v. Butler Exchange Company

Tillinghast, J. (1) *107 (2) *106 We think the first count in the plaintiff’s declaration is demurrable in that it shows that the plaintiff was guilty of contributory negligence in attempting- to leave the elevator while it was in motion and before it had reached the level of the floor to which she was being carried. The count is objectionable also in alleging that the defendant’s “servant opened the door of the elevator which opened onto the fifth floor, and thereby invited the plaintiff to walk out of said elevator onto said fifth floor before the floor of the elevator was level with said fifth floor, and while it was in motion.” This is pleading a conclusion of law as to the invitation, and is also stating a proposition to which we cannot assent. Eor it does not necessarily follow that because the defendant’s servant opened the door of the elevator he thereby as matter of law invited the plaintiff to leave the elevator. Such an implied invitation would depend upon circumstances. If the door was opened after the elevator had reached the floor in question and come to a stand-still, an invitation to step out would clearly be implied; but if it was opened before *107 reaching the floor and coming to a stand-still, or practically doing so, no invitation ought to be implied on the part of the passenger. Brakemen on railroad trains usually open the gates on the platforms and also open the doors of the cars just before reaching a station, and they also announce the name of the station ; .but no one would treat this as an invitation to alight until the train had come to a stand-still. In Chafee v. Ry. Co., 17 R. I. 661, this court held that the implied invitation to a passenger to cross the track, if necessary, in order to board a train, does not continue after the train has started. The allegation as to the invitation is therefore objectionable ; and while the count is not demurrable for this reason, as this part thereof might-be rejected or stricken out as surplusage, 12 Ency. PI. & Pr. 1028, we think attention should be called thereto in order that we may not appear to approve thereof. See Martello v. Fusco, 21 R. I. 572. (3) We think the second count states a cause of action. It sets out in substance that after the elevator had reached the fifth floor, and while the plaintiff was passing out of the elevator onto said floor (she having been invited to leave the elevator by the servant by opening the door after arriving at this floor), the defendant’s servant caused the elevator to move upwards, whereby one of the plaintiff’s feet was caught between the floor of the elevator and the fifth floor of the building and injured. This count, as we understand it, alleges that the elevator had reached the fifth floor or was so near to the level thereof that the passengers could easily and safely step out upon said floor; that the elevator had either absolutely or practically come to a stand-still; that the door had been opened to enable the passengers to alight; and that while the plaintiff was stepping out the elevator was started up again and the plaintiff’s foot caught as aforesaid. The count is not so accurately drawn as it might he, hut, construing it as we have, we cannot say that it is demurrable. The demurrer to the first count is sustained, and the demurrer to the second count is overruled. *108 JEJ. C. Pierce, for plaintiff. Vincent & Rice, for defendant. Case remitted to the Common Pleas Division for further proceeding’s.