Cubbage v. Estate of Conrad Youngerman, Inc.

McClain, C. J. The grounds of negligence alleged were that defendant had in charge of the operation of the elevator at the time of the accident an incompetent operator; that defendant allowed the car to be operated with knowledge of defective condition of its machinery and appliances; and that the operator in charge of the car was careless and negligent in its operation, mangement, and control. The appellant questions the sufficiency of the evidence to take the case to the jury as to each of the alleged grounds of negligence and complains of the instructions given by the court with reference to the degree of care required of the defendant in maintaining and operating the elevator. Complaint is made also of the admission of two items of evidence, and it is contended further that the verdict was excessive. *' elevator accirequired of owner. I. As the sufficiency of the evidence to take the case to the jury on the grounds of negligence alleged must depend to some extent on the measure of care required of the defendant, in maintaining and operating the elevator, that question will be first considered, By a decided preponderance in the weight of . ° authority,- the measure of care and diligence required of one who maintains and operates a passenger [42] elevator in a building into which the public is invited to come and make use of such elevator for usual purposes is the same as that required of public carriers of passengers; that is, the highest degree of skill and foresight consistent with the efficient use and operation of the means of conveyance. 1 Hutchinson, Carriers (3d Ed.) section 100; 1 Thompson, Negligence, section 1078; 10 Am. & Eng. Enc. of Law (2d Ed.) 946. It would be of no advantage to enter into an elaborate discussion of the facts and reasoning of the cases cited in the text-books in support of this general proposition. A few recent cases may properly be added, however, to those cited in the authorities above referred to. Quimby v. Bee Building Co., 87 Neb. 193 (127 N. W. 118, 138 Am. St. Rep. 477); Ohio Valley Trust Co. v. Wernke, 42 Ind. App. 326 (84 N. E. 999); Sweeden v. Atkinson Improvement Co., 93 Ark. 397 (125 S. W. 439, 27 L. R. A. (N. S.) 124); Farmers’ & Mechanics’ Nat. Bank v. Hanks, (Tex. Civ. App.) 128 S. W. 147; Shellaberger v. Fisher, 143 Fed. 937 (75 C. C. A. 9, 5. L. R. A. (N. S.) 250). In New York and Michigan passengers in elevators are entitled to only the ordinary care which the owner of land is required to exercise for the protection of persons who by invitation come upon his premises. Griffen v. Manice, 166 N. Y. 188 (59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630); Burgess v. Stowe, 134 Mich. 204 (96 N. W. 29). In Massachusetts it is held that one maintaining a passenger elevator in an office building is not a common carrier of passengers as defined by statute; but the court does not define or attempt to indicate the degree of care required for the protection of the elevator passenger against injury. Seaver v. Bradley, 179 Mass. 329 (60 N. E. 795, 88 Am. St. Rep. 384). It may well be that the owner of a building operating a passenger elevator therein is not a common carrier of passengers; but the authorities above cited, with the three exceptions noted, hold that the relation of the owner and operator to the passenger is so [43] far analogous to that of a carrier to a passenger as that the degree of care required, for the protection of the passenger from injury is the same. This view we think to be not only supported by the great weight of authority, but intrinsically sound, and we have no hesitation in adopting it. The court did not err, therefore, in giving instructions to the jury on this theory. 2, Same: incompetent em- # ployee: negligence of mas-II. We have no serious difficulty under the record in finding that there was sufficient evidence to take the case to the jury on each of the grounds of negligence alleged and submitted. As to the alleged negligence in r *t , i . . , • i iamng to have a competent operator m charge . . . _ _ ox the car, it is sufficient to say that although the elevator boy 'in charge was twenty years of age, and had had more than two months’ experience, he had, according to his own evidence, been in the habit of starting the car before closing the door of access; at least, the jury might have drawn this inference from his testimony. Habitual negligence and carelessness in the performance of the duties involved in the employment may constitute incompetency chargeable to the employer as negligence in retaining the employee in his service. Maitland v. Gilbert Paper Co., 97 Wis. 476 (72 N. W. 1124, 65 Am. St. Rep. 137); Wall v. Delaware, L. & W. R. Co., 54 Hun, 454 (7 N. Y. Supp. 709); Malay v. Mt. Morris Electric Light Co., 41 App. Div. 574 (58 N. Y. Supp. 659); Cameron v. New York Cent. & H. R. R. Co., 77 Hun, 519 (28 N. Y. Supp. 898); Coppins v. New York Central R. Co., 122 N. Y. 557 (25 N. E. 915, 19 Am. St. Rep. 523); Smith v. Backus Lumber Co., 64 Minn. 447 (67 N. W. 358); Hughes v. Baltimore & O. R. Co., 164 Pa. 178 (30 Atl. 383, 44 Am. St. Rep. 597). [44] 3' of machinery: [43] III. As to the condition of the machinery, there is evidence tending to show that, although the electric power was shut off and the brake automatically applied when the floor of the car was only about two feet higher than the [44] bottom of tbe door or exit, the car did not stop until plaintiff’s legs were jammed against the top of the opening, which was seven feet high, and that the attention of the superintendent had three days before been called to the fact that the car would slide at times more than was usual. It was for the jury to’ say whether the machinery had been kept in a reasonable and proper condition of repair. Anderson v. Greenburg, 118 Ill. App. 220. 4 Sake- negiitioí of eie'vator: evidence. IY. In determining whether there was any evidence justifying a submission to the jury of the question whether the employee in charge of the elevator was careless and negligent in the operation, management, and control of the car, the following facts are to congj,¿ere(j. The plaintiff, an attorney employed in the offices of a firm on the fifth floor of the building, entered the car at the main floor with one Loftis, who occupied an office on the fourth floor. The elevator boy knew the usual destination of each, but neither announced his destination on that trip. At the fourth floor the elevator boy stopped the car and threw open the door, and Loftis immediately stepped out. Plaintiff attempted to follow him; the two being in conversation. The elevator boy, apparently not noticing that plaintiff was stepping from the car with Loftis, turned on the power and attempted to close the door, which struck the leg of plaintiff as he was attempting to step out. Thereupon the elevator boy attempted to shut off the power, but the car did not stop, and plaintiff’s head struck against the top of the shaft opening. By this concussion he was thrown backward to the floor of the car, his feet protruding through the opening and being brought in contact with the top of the door frame. . Under these facts, we think it clear that it was a question for the jury whether the elevator boy was negligent in starting the car before he knew whether plaintiff was attempting to get off. Even if plaintiff had announced his [45] destination, it was the duty of the elevator boy to guard against inadvertence or a change of mind on his part by seeing to it that he was not in a position of danger when the elevator started. The situation can be well illustrated by a case where a number of persons are in an elevator car destined for different floors. The elevator boy would have no right to assume that each would attempt to get off only at a floor which he had previously specifically designated. The concern of the passenger in announcing the floor of his intended exit is only to procure the stoppage of the car at that floor. When the car is stopped for persons to get off, any passenger desiring to leave the car at that place has the right to have a reasonable opportuntiy to do so, and it is the business of the elevator boy to see, before the car is started, that the starting of the car will not put any of his passengers in peril. The case is very analogous to that of a street car which has been stopped at a regular crossing to afford passengers the opportunity to alight at that crossing. It is clear that the conductor of such a car would be negligent in causing it to start while a passenger was attempting to get off, regardless of whether the conductor had been advised that the particular- passenger desired to get off at that stop. Boice v. Des Moines City R. Co., 153 Iowa, 472; Root v. Des Moines City R. Co., 113 Iowa, 675. Specifically as to the duty of the employee operating a passenger elevator not to start the ear before closing the door and seeing that no one will be placed in peril, see Belvedere Building Co. v. Bryan, 103 Md. 514 (64 Atl. 44); Becker v. Lincoln Real Estate & Building Co., 174 Mo. 246 (73 S. W. 581); Luckel v. Century Building Co., 177 Mo. 608 (76 S. W. 1035). There was also a question for the jury as to whether the elevator boy was negligent in the management of the elevator after he discovered the peril to the plaintiff. [46] 5’ tributory’neg [45] Y. "Under the facts as stated in the last preceding division, the question of plaintiff’s contributory negligence was clearly one for the jury. He was certainly not negli [46] gent as matter of law in attempting to get off at a landing at which the elevator had been stopped, without specifically advising the elevator boy beforehand that he desired to get off at that landing. Chicago Exchange Building Co. v. Nelson, 197 Ill. 334 (64 N. E. 369); Blackwell v. O'Gorman Co., 22 R. I. 638 (49 Atl. 28). mate'cause-instructions. VI. Instructions, specifying the negligence charged and which the jurors might consider, are complained of on the ground that they do not indicate to the jury the necessity of finding that such negligence, if proved, must appear to have been the proximate _. , , . # cause of plaintiffs injury in order to entitle him to recover. The question of proximate connection between the negligence proved and the injury suffered was sufficiently covered by other instructions of which no complaint is made. The jury could not, under the instructions, have failed to understand that in order, for plaintiff to recover it must appear that his injury was the proximate result of the negligence alleged and proved. 7. Same: impairment of earnni£ capacity: evidence: pre VII. The court in its instructions allowed the jury to take into consideration, in fixing plaintiff’s damages, the diminution in his earning capacity, due to his injuries which as the evidence tended to prove, were . . m some respects permanent. An instruction * was asked withdrawing from the jury any question as to loss on account of diminution in earning capacity, which the court refused to give. The contention for appellant is that there was no evidence whatever to show any such loss; the only direct evidence on the subject being that plaintiff’s salary was increased soon after the injury. But counsel’s argument is based on the erroneous assumption that the only competent evidence of damage on account of loss of earning capacity is that afforded by proof that on account of the injury the actual earnings of the injured party were less than before the injury. This [47] might be competent evidence, but the converse is not necessarily true. Plaintiff' testified that since the injury he had been subject to headaches, that his hearing in one ear had been impaired, and that one knee was injured and weakened so that he used it with difficulty, especially in walking up an incline. Physicians testified that the liability tó headaches and the impairment of hearing were the result of the injury to plaintiff’s head in the collision with the top of the elevator door frame; that they were probably permanent; and further that there had been a severance of some nerves of plaintiff’s leg above the knee which would permanently incapacitate him from physical labor and subject him to continued rheumatic trouble, which had already affected the knee as the result of the injury. There is also some testimony of physicians to the effect that plaintiff’s health is generally impaired. We do not understand that impairment of earning capacity for which plaintiff may recover is limited to earning capacity in his present position, or even in his present vocation. It may be true that a lawyer can do as much business and get as large fees with an injured knee as though he were physically sound; but that is not necessarily true, even in such vocation, and certainly- recurring headaches may seriously impair the earning capacity of a lawyer, although they may not have injuriously affected plaintiff’s immediate earning capacity as an assistant in a law office. Because plaintiff is now merely an assistant in a law office is no reason why it shall be presumed that he will not in due course of time engage in a general practice in which recurrence of head-caches and partial loss of the power of hearing will be serious impediments upon his earning capacity. Indeed, he may desire to and be justified in undertaking some business in which his impaired physical condition will be a direct handicap on his earning capacity. We understand the rule to be that impairment of physical capacity in itself may be presumed to impair the general earning capacity of the person who is injured; the extent of impairment being a Question for the jury under all the circumstances. Wimber [48] v. Iowa Central R. Co., 114 Iowa, 551. And. see, as lending some support to this view, Fisher v. Jansen, 128 Ill. 549 (21 N. E. 598); McGarrahan v. New York, N. H. & H. R. Co., 171 Mass. 211 (50 N. E. 610); Gulf, W. T. & P. R. Co. v. Abbott (Tex. Civ. App.) 24 S. W. 299; Hamilton v. Great Falls S. R. Co., 17 Mont. 334 (42 Pac. 860, 43 Pac. 713). 8. Evidence: mortality tables: instructions. VIII. Life tables were introduced in evidence over the defendant’s objection, showing the expectancy of life of a person of plaintiff’s age, and the court instructed the jury that in ascertaining the amount to be allowed as compensation for future pain and suffering and for future depreciation of ability to earn money as the result of physical injuries, the jury might take into consideration plaintiff’s reasonable expectancy of life and as evidence thereof the mortality tables introduced in tbe case. On this subject there are two complaints for appellant: Eirst, that because of plaintiff’s impaired physical condition the tables relating to the general average of healthy persons afforded no criterion as to the probable duration of his life; and, second, that tbe court did not leave it to the jury to say what was his probable expectancy of life under the circumstances of the case. That life tables are admissible in evidence, although the person whose expectancy is in question is not in normal health, is too well settled now to be the subject of any serious discussion. Such tables have been held admissible even where recovery was sought for pain and suffering and impairment of earning capacity on the part of one so seriously injured and crippled that there was little probability of his living out the period of expectancy. Patton v. Town of Sanborn, 133 Iowa, 650; Clark v. Van Vleck, 135 Iowa, 194; Coates v. Burlington, C. R. & N. R. Co., 62 Iowa, 486; Louisville Bolt & Iron Co., v. Hart, 122 Ky. 731 (92 S. W. 951); Pecos & N. T. R. Co. v. Williams, 34 Tex. Civ. App. 100 (78 S. W. 5). [49] It was not reversible error for the court to instruct the jury that the life tables might be considered as evidence of plaintiff’s expectancy without further instructing them that they should take into account in this respect all the evidence in the ease relating to plaintiff’s health and physical condition, in the absence of any request for more specific instructions. Grace v. Minneapolis & St. L. R. Co., 153 Iowa, 418; City of Friend v. Ingersoll, 39 Neb. 717 (58 N. W. 281); Camden & A. R. Co. v. Williams, 61 N. J. Law, 646 (40 Atl. 634); Belmer v. Boyne City Tanning Co., 160 Mich. 669 (125 N. W. 726); Chicago Veneer Co. v. Jones, 143 Ky. 21 (135 S. W. 430). In this case there was no necessity for any qualifying instruction, for the reason that there was no evidence showing any physical impairment calculated to materially shorten life, and the life tables furnished the only evidence'in the case as to how long plaintiff would probably live. 9 Same- evi-' graphs a5d°' drawings. IX. In explanation of his testimony, plaintiff referred to certain exhibits consisting of photographs and drawings illustrating plaintiff’.s position in the car at the time the accident. These exhibits were objected to on the ground that there was no evdienee that they correctly represented the situation. The character of the representations, as made under plaintiff’s direction by one who was not present at the time of the accident, was fully made to appear, and the jury could not have been misled into supposing that they were admitted for any other purpose than to illustrate plaintiff’s testimony to the extent to which they were relied upon by him. Such sketches have been regarded as admissible in other courts, and we see no objection to their use in a proper manner and in a pertinent case. Luckel v. Century Building Co., 177 Mo. 608 (76 S. W. 1035); Lee v. Publishers’ Co., 155 Mo. 610 (56 S. W. 458); Bowling Green Gaslight Co. v. Dean’s Executrix, 142 Ky. 678 (134 S. W. 1115). As independent evidence, these exhibits were not admissible; [50] but as mere sketches, diagrams, or illustrations enabling the plaintiff to testify more intelligibly, they were without objection, as they enabled the jury to better understand the subject-matter about which the witness was testifying. It is so common a practice to allow witnesses to draw plats or diagrams of a locality for the purpose of enabling the jurors to understand the bearing of the testimony given that we would not feel justified in flying in the face of general usage and practice in the courts by holding them inadmissible because they are not otherwise so verified as to make them independent evidence. Western Gas Co. v. Danner, 97 Fed. 882 (38 C. C. A. 528). io. Same: sudden emergency: instructions. X. The refusal of the court to give a requested instruction as to the effect of a sudden emergency in excusing the conduct of the elevator boy in not sooner stopping the car is fully justified by what we have recently said in the case of Boice v. Des Moines City R. Co., 153 Iowa, 472. The doctrine of sudden emergency has usually, and so far as we are advised always, been recognized only in determining the question of contributory negligence. Of course, the suddenness of the emergency might be taken into account in determining whether the elevator boy exercised the degree of care required. There was nothing in the instructions of the court which would have justified the jury in assuming that under the circumstances the failure of the elevator boy to stop the car before the plaintiff was injured, or before some of his injuries had been received, was in itself necessarily negligence. The instruction asked was not required in order t-o guard the jury against such a conclusion. Some other complaints made with reference to the instructions given and refused are not of such character as to merit specific discussion. XI. In view of the evidence tending to show permanent injury and resulting future pain and suffering and [51] physical disability, we think there is no occasion to discuss the contention that the verdict is excessive. The judgment of the trial court is affirmed.