B. Shoninger Co. v. Mann

Mr. Justice Smith delivered the opinion of the court. Mo question is made here as to the manner or the fact of the injury received by the plaintiff, nor is there any controversy as to the extent of the injury. It is contended, however, that under the pleadings and the evidence there should have been no recovery against the defendant. It is not strongly insisted by counsel for appellant that appellant was not guilty of negligence in permitting the elevator shaft to remain open and unguarded and the entry way dark and without any light. The state of the record is such, however, that appellant is here insisting that appellee was guilty of contributory negligence, while not much is said touching appellant’s negligence. The evidence is undisputed that at the time of the accident, appellant was in possession of the entire building, subject, of course, to the rights of its tenants. Appellant was in full possession and control of the halls, entry ways, steam heating plant, and elevator, and was operating the elevator for the benefit of itself and its tenants. Under such circumstances it was undoubtedly the duty of appellant properly to guard and protect the elevator shaft, and if it failed to discharge that duty and any injury was sustained by the tenants or employees of the tenants, or other persons rightfully upon the premises, through such failure of duty, appellant is liable therefor. Payne v. Irvin, 144 Ill., 482; The People’s Bank, etc., v. Morgolofski, 75 Md., 432; Mauzy v. Kinzel, 19 Ill. App., 571; Fisher v. Cook, 23 Ill. App., 621. This duty was not in the least affected by its contracts with persons other than appellee, such as the provision in the lease between appellant and Thompson & Thomas, appellee’s employers, to which appellee was not a party. Springer v. Ford, 189 Ill., 430. Mo question is made by the evidence that this duty was performed. It is admitted that the entry way was dark and unlighted by appellant, and that the elevator shaft was left without any guard or protection. This in our opinion was gross negligence. Unless, therefore, appellee was guilty of contributory negligence, appellant is liable for appellee’s injuries. This question will now be considered. ¡Whether the plaintiff was exercising ordinary care at the time of the accident should be considered with reference to what he was doing and the conditions in which he was placed. The evidence showed that he was engaged actively in the discharge of his duties; that the place was dark, too dark to read writing" readily, even with a lantern. The entry was unlighted in any way by appellant. Plaintiff and the boys working with him had one lantern. This was in the hands of one of the other boys. At the time of the accident the light was turned toward the alley and it was dark in and about the shaft. Plaintiff was sixteen years of age. While thus engaged and under these conditions plaintiff slipped and fell toward and into the elevator shaft. As stated by appellant’s counsel in their brief, there is no conflict in the evidence. The question then is, under this evidence, was the plaintiff guilty of negligence per se so that the court can pronounce it such as a legal conclusion and not as a mere deduction from the evidence ? That is in substance the contention of appellant. But whether he was negligent or not was a question of fact for the jury, we think, under1 the facts here shown; and we do not think there is such clear and undisputable negligence shown, contributing to the - injury as would have justified the court below in holding that contributory negligence was proved, and in instructing the ' jury on that basis and consequently the question was properly left to the jury to determine as a question of fact. Ames & Frost Co. v. Strachurski, 145 Ill., 192; Rosenbaum v. Shoffner, 98 Tenn., 624; Village of Cullom v. Justice, 161 Ill., 372; Mauzy v. Kinzel, 19 Ill. App., 573. The question of negligence,. both on the part of the plaintiff and defendant, was for the jury to determine from all the evidence, and we are unable to say that their verdict is. not fully supported by it. The question of assumption of risk by the plaintiff is argued extensively by counsel for appellant. We do not regard that question as in the casé for obvious reasons. Hence, we do not discuss it, or the cases cited growing out of the contractual relations of master and servant. Appellant claims that it was surprised by the amendment to the declaration made by leave of court during the trial, and that its application for a continuance should have been granted. During the trial there was inserted in the first count of the declaration after the word “eyes” near the end of the count the following words: “And thereby plaintiff’s liver, kidneys, nervous system and brain were permanently injured.” In our opinion appellant was not prejudiced by the amendment for the reason that the declaration, as it stood before the amendment, permitted a recovery for every ailment proved on the trial. The amendment added nothing to the declaration. L. S. & M. S. Ry. Co. v. Ward, 135 Ill., 511; Baltimore & O. S. W. R. R. Co. v Slanker, 180 Ill., 357. Appellant urges that the damages awarded by the jury are excessive; 'With this contention we do not agree. The uncontradicted evidence in the record shows that the injuries-suffered by the plaintiff are of the most serious character, and that they are permanent. His entire future is destroyed. He can never be of any use to himself or any other person. As a result of the accident he is and must remain an invalid all his life. We cannot say that the verdict is excessive. Finding no error in the record the judgment is affirmed. Affirmed.