Fowler v. Medical Arts Bldg.

WADE, Justice. A jury awarded plaintiff a substantial verdict against the defendants as damages for the death of his three year old son, David John Fowler, who was killed on April 27, 1944, at about 3:00' p. m., in an accident on the elevator of the corporate defendant’s building. Defendants appeal from such judgment. The Medical Arts Building is a 10 story office building in Salt Lake City in which three elevator shafts are built side by side. Kimball elevators, a standard make, are installed therein, they operate at two speeds, the faster speed is usually used which at its highest speed moves at the rate of about 400 feet per minute. The speed at which these elevators start and which they attain as they continue to move is controlled automatically. The high speed does not start any faster than the slow speed, but only continues to attain greater speed for a longer period of continuous running. The operator can move the cage either up or down, or stop, or move either at high speed or low speed. The speed at which it starts and stops are controlled automatically. There is no door on the elevator cage, and as the cages moves up and down there is an open space in the front *369 thereof, which opens either into the doors or the elevator shaft. There is a door at the entrance of each of the elevator shafts on each floor, consisting of two panels each of which runs in a separate groove one behind the other; the doors open and close by each panel sliding along its groove, and is operated by a cross bar with an elbow in the center which runs horizontally across the doors the full width of the two panels about five feet above the floor. When the doors are closed the center edges of the two panels are about even and slightly overlap each other, and the outer edges of these panels are against the door frame. When they are opened they slide to one side and one door is in front of the other. When the floor of the elevator cage is even with one of the floors of the building, there is only an inch or less space between them. When the doors are closed and the floor of the elevator cage is opposite some part of the doors there is a space of about 4% inches or more between the edge of the elevator floor and the farther panel of the door, a space of about 3% inches between the near panel of the door and the floor of the elevator cage, and a space of only 1% inches between the inside edge of the cross bar and the edge of the elevator cage floor. Thus the horizontal cross bar projects about three inches or more nearer to the floor of the elevator cage than the inside of the farther door. The doors and cross bar remain stationary on the floor where they are built, while the elevator cage moves up and down past them, and while this is talcing place there is nothing except empty space between the passengers on the elevator cage and the doors and cross bar. Shortly before the accident, Mrs. Fowler, the mother of the deceased boy, whom we will hereinafter call Johnny, and her sister, a Mrs. Smith, with three children were on the third floor of the Medical Arts Building, looking for the office of a Dr. Chase. Mrs. Smith was accompanied by her daughter Marilyn and Mrs. Fowler by her daughter Charlotte and by Johnny. Each of the girls were older than Johnny. When the elevator going up stopped, Mrs. Fowler inquired of the operator for Dr. Chase’s office and was told *370 it was on the ninth floor, whereupon they all entered the elevator. As they did so, according to plaintiff’s version of the facts, Mrs. Smith was holding Johnny’s hand in one of hers and in the other she was holding her daughter Marilyn’s hand. The elevator, after they had entered, was filled nearly but not quite to its capacity. In order to turn around to face the doors Mrs. Smith released her hold on Johnny’s hand while he was between her and the doors and before she had completely turned around and before she had time to take his hand again the elevator started with a jerk. According to all the substantial evidence of all parties, with the start of the elevator Johnny lost his balance and fell forward toward the door his head coming in contact therewith, his head against the door was pushed upward until it came in contact with the bottom of the cross-bar across the door which projected out from the farther panel of the door three inches or more, this bar caught his head thereby preventing it from continuing to go on up with the elevator, and as the elevator continued to go on up, first his head and then the rest of his body was forced between the doors and the elevator floor, and as the elevator passed on up above his body he fell down to the bottom of the elevator shaft, more than fifty feet below. When the building engineer reached him there, his face was mangled beyond recognition and he was dead. Of the facts stated above only three are in dispute. Mrs. Fowler testified that when Johnny fell, the third floor doors leading into the elevator shaft were opened. She was not corroborated in this by any other witness, and most of the physical facts seem to indicate the contrary. If the doors were opened he would simply have fallen through an open space onto the third floor. Since he was moving away from the elevator shaft his momentum would probably carry him away therefrom far enough so that he would not fall into it. All of the witnesses give the impression that he was pulled through a narrow space rather than that he merely fell through an open door. Both Mrs. Smith and Mrs. Fowler expressed the idea that there was time enough in *371 his going for the elevator girl to have stopped the elevator in time to save him. If he had just fallen forward through an open door as soon as he fell he would have been gone. Mrs. Smith described his going as being like clothes being pulled through a wringer. There was a spot of what was described as fresh blood on the elevator floor. However there was no evidence that the cross bar had any blood on it. The building engineer was positive that the electrical contact with the machinery which runs the elevator would be broken whenever the door was opened. Thus there was no substantial evidence from which the jury could reasonably conclude that the door was open when he fell. Defendant Norma Peterson, the elevator operator at the time of the accident, testified that there was no jerk in starting the elevator, and that Mrs. Smith, Mrs. Fowler and Johnny were all facing the doors and that Mrs. Fowler was holding Johnny’s hand when she started. All the witnesses, except Mrs. Smith and Mrs. Fowler, who were on the elevator when the accident occurred testified that they did not notice any unusual jerk in starting. The building engineer testified that the starting was automatically controlled so that if it started at all it could not start with a jerk. A police officer testified that he inspected this elevator immediately after the accident, while it was being operated by the building engineer and that it did not then start or stop with a jerk. Plaintiff called two other witnesses, neither of whom were related to, or prior to the accident, acquainted with the plaintiff or his family. Each testified of riding the elevator on which Johnny was killed, on different occasions, within a week prior to the accident while it was being operated by other operators, and that on such occasion the elevator both started and stopped with a jerk, both on regular stops and between floors and that before the top floor was reached the passengers were asked to take another elevator. The defendants did not directly contradict this testimony. Although the operators of the elevators on these occasions were described, and the times when these incidents occurred *372 were quite definitely fixed, the defendants did not call such operators or make any showing that they were unable to do so. Nor did they call any other person who was riding on the elevator on either of those occasions. They argue that the testimony of these two witnesses was not admissible in evidence. They cite cases to the effect that evidence of negligence on one occasion may not be proven by showing similar acts of negligence on previous occasions. Those cases are clearly not in point here. The defendants used the same kind of testimony to prove that the elevator did not jerk in calling the city policeman who inspected the elevator immediately after the accident, and testified how it operated while the building engineer was operating it. The only difference is that the policeman observed the operation immediately after the accident and one of plaintiff’s witnesses testified of an incident within a week prior thereto and the other testified of an incident which occurred on the Tuesday prior to the accident which occurred on Friday. Defendants’ evidence showed that no repairs had been made in the meantime. Under such circumstances this evidence was not too remote. It had some probative value on the question of whether the elevator started with a jerk. The facts that it started with a jerk on these previous occasions and that no repairs were made in the meantime, increases the probability that it so started at the time of this accident, and definitely refutes defendants’ evidence to the effect that it was impossible for this elevator to start with a jerk. In any event this evidence was clearly admissible to show that the corporate defendant had knowledge through its employees, the operators of the elevators on those prior occasions, that the elevator was out of repair. 18 Am. Jur. 561, section 73; 38 Am. Jur. 757, Section 97; 45 C. J. 651, section 25. Mrs. Smith and Mrs. Fowler both testified that before they had time to turn around and face the doors, or take Johnny’s hand, the elevator started, and that neither of them were holding him at that time. Their description of what they saw is in harmony with this testimony: They described *373 entering the elevator, its starting, and of seeing him disappear as if drawn through a wringer, of trying to grab him when it was too late, and of thinking that the elevator girl could have stopped the elevator in time to save him had she acted promptly. They did not claim to have seen him lose his balance and teeter and fall when the elevator started, nor of seeing the cross bar on the door catch his head. What they testified to seeing is exactly what they would have seen if the elevator started before they had time to turn around. The two eye witnesses to the accident produced by the defendants were facing the elevator when Mrs. Smith and Mrs. Fowler entered. They naturally saw and described in detail that when the elevator started Johnny lost his balance and teetered and fell, and his head was caught by the cross bar. Both of these witnesses admitted that Mrs. Smith and Mrs. Fowler were not completely turned around and facing the door when the elevator started, and one of them was positive that no one was holding his hand at that time, the other was not sure on that point. Although neither of these witnesses would admit that there was any unusual jerk in starting, or that the elevator started before Mrs. Smith and Mrs. Fowler had time to turn around, still their description of these events are in harmony with Mrs. Smith’s and Mrs. Fowler’s testimony on that point. Naturally a person who is in an elevator waiting for it to go on up, and is facing the persons who enter, would see what happened to Johnny when it started. Since they were waiting for the elevator to proceed, and as one of them testified, in a hurry to get to their destination, they would not be impressed by the fact that it did start before those entering were ready, nor would they notice a jerk like a person who is entering and at the moment off balance. One of these witnesses testified tht Mrs. Fowler, by putting her hand to her head indicated that she saw the accident. But that does not indicate that she saw the first part of it when Johnny lost his balance and fell and the cross bar caught his head. TH5s evidence is ample from which the jury could reasonably *374 find that the elevator started before these women had time to turn around and resume holding Johnny’s hand and that it started with a jerk. This disposes of defendants’ contention that the evidence is conclusive that Mrs. Smith and Mrs. Fowler, or one of them, was guilty of contributory negligence in not holding Johnny’s hand when the elevator started, and that such negligence is sufficient to defeat plaintiff’s right to recover. Whether such is the law we do not have to decide and therefore express no opinion thereon. Such contention is based on the assumption that the evidence is conclusive that Mrs. Smith and Mrs. Fowler had ample time to turn around and face the doors and to take hold of Johnny’s hand and that they failed to do so. Since as pointed out above the evidence is such that the jury might reasonably find that the elevator started before they had time to turn and resume holding his hand, in which event there was no contributory negligence, this contention is not well founded. Defendants argue that there was no evidence of negligence on their part which proximately caused the accident. In this connection they argue that the complaint does not charge them with negligence which proximately caused the accident in starting the elevator too soon. The complaint is somewhat ambiguous in this respect. It first details the facts as plaintiff claims them to be with reference to the accident from the time they entered the elevator to the time the boy fell down the elevator shaft. In doing so they allege that the elevator started before they had time to completely get onto and turn around and face the doors thereof, without characterizing such acts as negligence. It then continues in the same sentence and charges that as the direct and proximate result of the negligence of the corporate defendant in certain specified particulars and the negligence of the defendant Peterson in certain other specified particulars the boy was killed. In specifying the grounds of negligence which proximately caused the death the complaint does not repeat the allegation that the elevator started before they had time to get in and turn around, *375 but after repeating most of the events which are set out in the first part of the sentence it adds as “herein alleged.” Plaintiff argues that by adding the term “as herein alleged,” it was intended to refer back to the allegation that the elevator was started too soon. The complaint attempts to state a number of negligent acts which all taken together proximately caused the accident rather than to allege several separate and distinct negligent acts each of which in itself was the proximate cause of the accident. Taking the complaint as a whole no one could be mislead into thinking that plaintiff was not relying on his allegation that the elevator was started too soon as one of the acts of negligence which proximately caused the accident. And defendants were not so mislead. During the trial, without any objection of the defendants, plaintiff adduced evidence to that effect, and defendants cross-examined in detail on that question. In presenting their own evidence defendants directed the attention of their own eye witnesses of the accident to that question and placed in evidence their views thereon. This was one of the main issues in the trial, and defendants do not now contend that they were mislead and as a result thereof were not able to fully present their evidence on that question. They raise that question for the first time on this appeal. Under these conditions the trial court did not err in submitting that question to the jury. Nor is there any merit to defendants’ contention that the evidence does not justify a finding that their negligence was the proximate cause of the accident. The evidence shows that Mrs. Smith entered the elevator holding the hands of two children, Johnny the younger of the two being less than three years old, that when they entered the elevator was practically filled to capacity, that in entering she faced the back of the elevator and in turning around to face the elevator doors she released her hold on Johnny’s hand so he would not have to walk around her in the crowded elevator, that with Johnny standing between Mrs. Smith and the elevator doors and while they were in the act of turning *376 around and before they had time to face the doors or to resume holding his hand and while he was standing in front of the doors unsupported by any adult person and while the operator was in a position so that she could plainly see all of those facts and circumstances the elevator was started, and as it did so, Johnny lost his balance and teetered forward into the elevator doors, and his head was caught by the cross bar and was held there so that as the elevator continued to go up, first his head and then his entire body was forced through the space between the doors and the floor of the elevator cage, and when it had passed on up above him his body fell to the bottom of the elevator shaft. That Mrs. Smith and Mrs. Fowler, his mother not being fully turned around did not see him fall but- only saw him as he was being pulled through the space, that they then tried to grab him but it was too late, and the operator tried to stop the elevator but it did not stop until it had passed on above his body. The evidence as above pointed out was ample from which the jury could reasonably find the foregoing to be the facts, and from such facts they could conclude that the negligence of the defendants in starting the elevator too soon, under the surrounding facts and circumstances, was the proximate cause of the accident and death. Defendants concede, in fact they urge, in support of their claim that Mrs. Fowler and Mrs. Smith were guilty of contributory negligence in not holding Johnny’s hand when the elevator started, that it was highly dangerous for this small boy to stand unsupported in front of these doors when the elevator started. They contend that even though the start was without a jerk it would be very apt to cause him to lose his balance and fall forward as he did into the doors. One of their witnesses, a mature woman used to riding elevators, testified that when the elevator goes up it always causes her to throw herself slightly forward, unless she carefully guards against it. In view of this evidence, with the space between the doors and the elevator cage floor, and the cross bar projecting into the elevator shaft *377 in front of the doors it is evident that it would mean almost certain death for a child to fall against those doors below the cross bar. Under those circumstances to start the elevator with a small boy standing unsupported in front of those doors with the cross bar projecting toward him was highly dangerous to him. The jury was amply justified in finding that the defendants’ negligence in so doing was the proximate cause of the accident and death. The court in defining the issues which the jury must decide read almost verbatim the pleadings of the parties. Defendants contend that this was error. That it requires the careful attention of a trained legal mind to glean from the pleadings the issues of fact presented thereby, and that it is too much to expect a jury of laymen in the short time they have, to be able to do so, that there were issues of fact made by the pleadings which were not supported by any evidence; that there were facts alleged in plaintiff’s complaint which were either not denied by defendants or which were not controverted in the evidence which therefore should not have been stated to the jury and that the pleadings did not squarely present the exact issues of fact which were developed in the evidence. That such instruction had a tendency to mislead and confuse the jury rather than clarify the issues for them. The instructions as given under the facts of this case were objectionable under each of the foregoing grounds and the court erred in so stating the issues of fact to the jury. Pulos v. Denver & Rio Grande Railroad Co., 37 Utah 238, 107 P. 241, Ann. Cas. 1912C, 218; Smith v. Columbus Buggy Co., 40 Utah 580, 123 P. 580; Davis v. Heiner, 54 Utah 428, 181 P. 587; Shields v. Utah Light & Traction Co., 99 Utah 307, 105 P. 2d 347; Anderson v. Nixon, 104 Utah 262, 139 P. 2d 216. In these eases we held that it was the duty of the court to construe the pleadings and the evidence for the jury and therefrom state the issues of fact which they must determine in simple and concise language which laymen can understand and not leave the jury to glean the issues from pleadings, stated in lawyers terms and which require the careful study of a trained *378 legal mind to understand. We further held that the court should not submit issues to the jury which were not supported by evidence or state to the jury allegations of the plaintiff which were not controverted by the pleadings and the evidence of the defendant. The pleadings were so ambiguous, as previously pointed out, that counsel have spent much time in their briefs and oral arguments on their meaning. The pleadings are couched in legal terms not the language of laymen, for the most part the plaintiff’s allegations were in one paragraph of this instruction and the defendants’ answer to such allegations in another. It would require time and carefull study of a mind trained in the law to determine therefrom the exact issues of fact presented. Many of the allegations of the complaint were admitted in the answer, such as the corporate existence of one of the defendants, its employment of the other defendant and its ownership of the building and elevator in question, the court recited in this instruction all of these admitted facts and stated that they were admitted. There were many other facts alleged in the complaint which in a general way were denied in the answer but were not controverted in the evidence, such as the existence of a four to five inch space between the elevator cage floor and the doors from the floors of the building into the elevator shaft, and other like details of the construction of the elevator shaft and how the accident happened, all of these allegations were stated in this instruction, and it was stated that they were denied by the answer and thus submitted to the jury for determination although they were affirmatively proved by the evidence of all the parties. Also under this instruction the court submitted the question of whether the doors from the third floor into the elevator shaft were opened when Johnny fell forward, as we have previously pointed out there was no evidence to justify the submission of that issue to the jury. Another objection to this instruction is that the pleadings do not squarely present the facts as they were developed by the evidence. The theory of the complaint is that Johnny *379 fell forward through the open doors leading into the elevator shaft to the third floor and from there down the elevator shaft or that he fell through the four to five inch space between the doors and the floor of the elevator cage and the closed doors leading into the elevator shaft. No mention is made in the complaint or in this instruction of the cross bar across the doors in the elevator shaft which projected out from the doors toward the cage three inches or more and which caught Johnny’s head and pulled him through the narrow space between the doors and the cage floor as the elevator proceeded upward. The evidence is conclusive that he fell against the closed doors while the elevator was moving upward that his head was caught under the bar across the doors and he was drawn through the space between the elevator cage floor and the doors as the cage continued to move upward and then fell to the bottom of the shaft. By that instruction this variation of the proof from the pleadings was not directly submitted as a surrounding circumstance on which to base negligence on the part of the defendants. In jury cases the court should carefully analyze the pleadings and the evidence and determine therefrom the controverted issues of fact and submit for the jury’s determination only such issues. Such issues should be stated in simple, direct and concise language which laymen understand. The court was in error in thus defining the issues of fact which the jury must determine, but was such error prejudicial to the defendants? In the above cases only one was expressly reversed on the grounds that the issues were improperly stated, two were reversed for other reasons and two were affirmed in spite of the erroneous instructions. Section 104-14-7 and 104-39-3 both of U. C. A. 1943, require that no judgment shall be reversed on any error which does not affect the substantial rights of a party. In Davis v. Heiner, supra, we refused to recognize the rule that prejudice is presumed from error and held that the burden of establishing prejudice is on the party affirming it. With this in mind we will answer the question: Have the *380 defendants shown that they were prejudiced by this instruction? Aside from the questions of negligence and proximate cause of the accident, the facts to be determined by the jury were not complicated. As previously pointed out there were only two controverted material facts which were sufficiently supported by the evidence to be submitted to the jury. These were: 1. Did the elevator cage start upward before Mrs. Smith and Mrs. Fowler had time to turn around and face the doors and take hold of Johnny’s hand? 2‘. Did the elevator start with a jerk? The evidence on all other facts, whether submitted to the jury or not, was so conclusive that there is little probability that the jury reached an erroneous conclusion respecting any of them. This is true even of the question of whether the doors were opened when Johnny fell, which was erroneously submitted to the jury, there being no evidence to justify a finding that the doors were opened at that time. Defendants therefore have failed to show that they were prejudiced by the submission of un-controverted facts to the jury for determination, or the recital in this instruction of uncontroverted facts. The jury was called upon to decide whether under the surrounding facts, conditions and circumstances shown by the evidence the defendants were guilty of negligence which proximately caused the accident. As previously shown the jury might reasonably conclude that the defendants were guilty of such negligence under the surrounding facts, conditions and circumstances if they found that the elevator was started too soon. This would be especially true if they further found that it started with a jerk. The complaint bases the charge of negligence not on one single act, condition or circumstance but on a combination of all the surrounding facts, conditions and circumstances alleged therein. In determining that question the jury should have taken into consideration all of the surrounding facts, conditions and circumstances shown by the evidence, including the open space between the elevator doors and the elevator floor with a projecting cross bar across the doors and the *381 manner and time of starting the same on this occasion and determine therefrom whether the defendants acted as a reasonably prudent person would act under those circumstances. By this instruction the jury was told that plaintiff had alleged all of the facts which are set out in his complaint, which included all of the material facts disclosed by the evidence which tend to prove that defendants were negligent except the existence of the cross bar in front of the elevator doors. Although the Court did not point out the existence of this cross bar as a fact which the jury could consider in determining whether defendants were negligent, and did tell them that certain facts, which were conclusively shown by the uncontroverted evidence, were denied by the defendants thereby erroneously inferring that an issue on such facts were presented for their determination, the defendants case could not be prejudiced thereby. If there were errors in that respect they were more favorable to defendants than the evidence justified. The court should have directly pointed out and submitted to the jury for their determination all of the material issues of fact of which there was a controversy in the evidence. And where, as here, there were material facts which were conclusively established by the uncontroverted evidence so that no reasonable minds could disagree thereon, the court could properly instruct the jury that in arriving at their verdict they must consider such facts to be the facts in the case. It would also not be improper for the court in submitting the question of the defendants’ negligence and the proximate cause of the accident to the jury to recite to them the facts on which such questions are based and to instruct them that in determining those questions it is their duty to take into consideration all of the facts which were conclusively established by the evidence as well as all other surrounding facts, conditions and circumstances which from the evidence they found to exist and which have a bearing on those questions. Thus the defendants were not prejudiced by the recital of the allegations of plaintiff’s complaint. *382 The corporate defendant contends that it was not negligent on account of defective construction of the elevator and shaft. It claims that from four to five inches space between the floor of the cage and the door in the elevator shaft with no door on the elevator cage or other protection between the passengers and the doors and cross bar in the elevator shaft is a common practice in properly constructed elevators in this city and therefore not sufficient grounds to support a charge of negligence on the part of such defendant. While the complaint does charge negligence in the faulty construction of the elevator and shaft, as previously pointed out it charges negligent operation of the elevator in view of all the surrounding facts, conditions and circumstances and among the surrounding circumstances was mentioned the construction of the elevator which it charged to be faulty and negligently done, but it does not charge that such faulty and negligent construction of the elevator and shaft was a separate and distinct ground of negligence which was sufficient in itself without the negligent starting of the elevator on which to base such defendant’s liability. Since the issues of this case were submitted to the jury only in the language of the complaint and the complaint does not charge that the faulty construction of the elevator and shaft was a separate ground of negligence, we are not required to here determine whether the faulty construction of the elevator and shaft was in and of itself without the surrounding facts, conditions and circumstances sufficient to support a finding of negligence, but only whether all the surrounding facts, conditions and circumstances here disclosed by the evidence were sufficient to sustain the verdict. As previously demonstrated the evidence on that question was ample. This instruction could not have misled the jury into finding the corporate defendant guilty of negligence solely on the grounds of defective construction of the elevator and shaft. The facts shown by the evidence regarding the construction of the elevator were certainly factors which the jury could consider in determining whether the defendants were negligent or not. *383 We are therefore not required to determine whether the manner of the construction of the elevator was alone a sufficient ground of negligence to sustain the verdict and we express no opinion thereon. The issue of whether the elevator doors were open or closed was submitted to the jury by instructions Nos. 1 and 4. In instruction No. 1 the court stated the issues in the language of the complaint thereby stating plaintiff’s allegations of negligence. By instruction No. 4 the court in substance told the jury that before they could find the defendants liable they must be convinced from the evidence that the defendants were negligent in “some one or more acts or omissions on the part of the defendants alleged in the complaint as negligence.” The defendants made no request and took no exception which was calculated to advise the trial court of their contention which they make here that there was no substantial evidence to support the allegation that the doors were open when the cage started. Their exception to the first paragraph of instruction No. 4 was that the evidence was not sufficient to justify the court in submitting any issue of negligence to the jury. This amounted to no more than an exception to the court’s refusal to direct a verdict. Nor did their exception to instruction No. 1 call the court’s attention to their claim made in this court that the evidence was insufficient to sustain a finding that the door was open. That exception was only to the effect that the instruction contained too complete a recapitulation of the allegations of the complaint. Be that as it may, it was not likely that prejudice resulted from the instructions of which they complain. Even if the door was not fully closed when the elevator started, still the starting of the elevator before the aunt had time to turn around and grasp the child’s hand would have to occur before the open door would present a hazard. There clearly is no causal relation between the doors being open and the child losing its balance. If the negligence of the defendants *384 caused the child to be thrown from his feet under the circumstances testified to, the jury would hardly be justified in concluding that the defendants were not liable for the result, whether the doors were open or closed. If open, we are confronted with another negligent condition which permitted a passenger to fall out. If closed, then the described time and manner of starting the elevator in view of the construction of the doors, cross-bar, cage and elevator shaft was nevertheless negligent and the result forseeable. If the child was pitched forward by the movement of the elevator and the door being closed, he fell with his head in such a position that he was crushed between the elevator floor and the cross bar, the result is the same, both with respect to the negligence and proximate cause, as it would be were the doors open. Even though the child of its own volition moved towards the doors and being struck by the cross bar was pulled between the space between the doors and the elevator floor, or thus moved and fell through the open doors, the negligence alleged was shown. The moving of the elevator before the aunt had time to turn around and grasp the child’s hand placed him in a hazardous situation regardless of whether the door was open or closed. We are here dealing with the duty which the owner and operator of this elevator owed to this infant passenger in operating this open cage elevator. Any explanation of the accident predicated on a due care starting of the elevator is wholly unreasonable. Nowhere is it alleged, testified to or intimated, that the child walked or fell out through the open doors uninfluenced by the premature or sudden movement of the elevator. It must be borne in mind that the complaint here is not, nor was it in the trial court, of a variance between pleading and proof. The complaint is of the insufficiency of the evidence and error in the instructions. We find no prejudicial error. Other errors were assigned and argued by defendants which we have not discussed in this opinion, but we have carefully considered all of them and feel that there is ob *385 viously no merit to any of them. The judgment of the trial court is affirmed. Respondent shall recover his costs of appeal. McDonough, c. j., concurs.