Real Estate Trust & Insurance v. Gwyn's Administratrix

Whittle, J., delivered the opinion of the court. This action was brought by Walter B. Gwyn’s administratrix against the plaintiffs in error, the Real Estate Trust and Insurance Company, Incorporated, Robert A. Wainwright, Charles McIntosh Tunstall, and the Courtney Realty Corporation, to recover damages for the death of decedent, which was ascribed to the wrongful act of the defendants. To a judgment for the plaintiff for $10,000 this writ of error was granted. Gwyn was a lawyer and real estate broker in the city of Norfolk, having an office on the third floor of the Dickson Building. On the morning of March 3, 1911, he entered the car of an electric [343] motor-power elevator, in use in the building, on the bottom floor, to be carried to the third floor. While attempting to leave the car at the third floor, the elevator descended below the level of the floor, and the hood or top of the car struck him on the head, and, the elevator continuing its downward course, he was caught between the hood and the sill of the floor and killed. There are two essentially different theories propounded by the evidence as to the manner in which the accident happened. On behalf of the plaintiff, there was evidence tending to show, either that the car was stopped originally in correct position for the egress of passengers when it reached the third floor, or, having been carried past that floor, on the call of “third” by Mr. Gwyn, it descended to the third floor and stopped; that the door was opened to permit him to pass through, and as he was in the act of going out, with one foot in the elevator and one on the third floor, the car slipped, and he was struck on the head by the top of the hood of the car, and, the elevator continuing to descend, was caught between the top and the floor and killed. It will be observed that this hypothesis imputes no blame whatever to the deceased, but shows that he was the victim of the alleged negligent operation of the car by the elevator boy. It was also proved that the spring in the lever box had been broken and removed. That was an auxiliary contrivance which operated automatically, and was intended to carry the switch handle to the stop position and stop the elevator. There.was, however, evidence to the effect that the absence of the spring did not interfere with the control of the elevator, and that it had been removed three or four months prior to the accident. Some expert witnesses expressed the opinion that the elevator could be operated with greater safety without the spring than with it; that' the spring was liable to create a short circuit, and cause the ear to slip; so that the user or non-user of the spring was a matter of business judgment and expediency within the competency of those charged with the management of that department. In Arminius Chemical Company v. White’s Adm’x, 112 Va. 250, 71 S. E. 637, the skips in a vertical mining shaft were controlled both by hand brakes and air; and it was held that, in an emergency, the company was not liable for the action of the operator in exer [344] cising the right of selection between the two appliances, either of which was shown to be reasonably safe. The competing theory of the accident, presented by the evidence of the defendant, is that the ascending car had passed the third floor and was approaching the fourth floor, when a passenger said “fourth,” whereupon Mr. Gwyn called “third,” and the elevator boy reversed his lever and started down; that before they gained the level of the third floor the boy reached down and, with his right hand, swung the door partially open; that “the elevator never stopped moving at all,” and, while thus slowly descending, Mr. Gwyn put his left foot out on the sill of the floor, and was holding to the sides of the door when the elevator passed from beneath his right foot, leaving him thus suspended, and while in that position he was struck on the head by the top of the descending car and caught between it and the floor sill and killed. The plaintiffs in error assign as error the action of the court in giving, refusing, and modifying instructions. In the light of several recent decisions of this court, we are of opinion that the doctrine of “the last clear chance” (the incorporation of which in a number of the instructions given and amended by the court is made ground of exception) is inapplicable under any view of the evidence in this case. That doctrine is, of course, predicated upon the defendants’ theory that Gwyn was guilty of contributory negligence. According to that theory, the contributory negligence of the deceased commenced when he undertook to step off of an elevator while in motion, and through a partially opened door. It is true the car had to descend a distance of approximately five or six feet before he was actually caught between the top of the car and the sill of the floor; but it is also true that the car only had to travel about one foot before he was struck on the back of the head, and the top of the car remained in contact with his head until he was borne down and killed, as described By the witnesses. The catastrophe was continuous and practically instantaneous, covering only a few feet in point of distance and a few seconds in point of time. The doctrine of “the last clear chance” presupposes an appreciable difference in time between the earlier negligence of the plaintiff and the later negligence of the defendant. Moreover, it must appear [345] that, in contemplation of the entire situation, after the danger ■of the plaintiff became known to the defendant, or ought to have been discovered by him by the exercise of ordinary care, he negligently failed to do something which he had a clear chance to do to avoid the accident. But the doctrine can have no application to a case where the negligence of both plaintiff and defendant is .simultaneous and concurrent. Richmond Traction Co. v. Martin, 102 Va. 209, 45 S. E. 886; Consumers’ Brewing Co. v. Doyle, 102 Va. 399, 46 S. E. 390; Southern Railway Co. v. Bailey, 110 Va. 833, 67 S. E. 365, 27 L. R. A. (N. S.) 379; Roanoke Railway and Elec. Co. v. Carroll, 112 Va. 598, 72 S. E. 125. Nor does the evidence warrant the application of the doctrine •of “error in extremis," which presupposes that the party who invokes it was himself free from fault in creating the emergency. In the other aspect of the case, we discover no sufficient evidence upon which to predicate liability so far as the defendants Robert A. Wainwright and Charles McIntosh Tunstall are personally -concerned. But, under the evidence, the question of the liability of the Real Estate Trust and Insurance Company, Incorporated, and of the Courtney Realty Corporation was properly submitted to the jury upon correct instructions. For the errors indicated, the judgment must be reversed and the case remanded for a new trial. Reversed.