Wise v. Ackerman

Alvey, C. J., delivered the opinion of the Court. The appellee brought this action against the appellants to recover for an injury suffered while in the employ of the latter, resulting from what is alleged to have been a defective and dangerously constructed elevator operated in the appellants' factory. It is alleged by the appellee that he was in the employ of the appellants in their factory to render certain services, "and that in the-course of his said employment it was necessary for him to ride in and upon a certain elevator constructed and erected by said defendants in their factory, and propelled by steam, as a passenger from floor to floor, and especially from the third to the fifth floor thereof, from day to day during the period of his said employment; that, by the negligence and default of said defendants, the said elevator and the shaft up and down which said elevator was propelled by steam, were, and each was, constructed and erected unsafely, and in a defective and improper manner, the said elevator being without proper and suitable guard rails and walls, and said shaft being made dangerous and unsafe because of certain scantlings, or hoards projecting therein in close proximity to said elevator, when on its passage up and down the shaft, from about the fourth floor of said factory, and were suffered and permitted to he and remain out of repair, and in an unsafe and dangerous condition for want of repair, &c., which the defendants well knew, but of which the plaintiff was ignorant; that, by reason of the premises, the plaintiff while so employed, and whilst riding in and upon said elevator, as a passenger in the course of his employment, from the third to the fifth floor of said factory, and exercising due care and caution, on the 4th day of September, 1890, was injured by the catching of his left foot and ankle between the floor of said elevator and the said projecting scantling or hoards in the said elevator shaft, whereby the plaintiff was seriously and — 387 — permanently injured, crippled in his said left foot and ankle,” &c. The complaint is set forth in two other counts, but in more condensed form. The plea was not guilty. There were several exceptions taken by the appellants in the course of the trial, four of which were to rulings upon questions of evidence. And on the whole evidence admitted, the plaintiff offered fourteen prayers, and the defendants seven. All of the plaintiff’s prayers, except the fourteenth, were granted, and all those of the defendants were granted, except the first, and that asked the Court to say that there was no evidence legally sufficient to be considered by the jury, and therefore the verdict should be for the defendants. We shall dispose of the prayers first. It appears from the evidence that the appellee was fourteen years and seven months old at the time of the accident. That his employment required him to go from one floor to another in the factory very often — as often as twenty times a day. That among his duties were those of getting trucks for the transfer of goods, and taking them from one floor to another by the elevator, and unloading goods from the waiters or platforms of the elevators. On the occasion of the accident he had been sent for a truck to a lower floor, and after getting the truck and placing it on the platform of the elevator, he got on himself and was ascending the shaft, (the elevator being in charge of and operated by an independent regular operator,) when at the third floor, and while standing near the edge of the platform, with his back to the outer edge, his left foot, in someway extending over the side of the platform, was caught between the side of the platform and the end of a joist projecting into the shaft, and was badly crushed. The space between the edge of the platform and the end of the projecting joist or timber in the shaft was about two inches. — 388 — The plaintiff swears that the shaft was dark, and that he did not see the projecting joist, or know of the danger to his position on the elevator. The defence is that the injury was produced by the plaintiff’s own carelessness, or by his negligent inattention to the obvious dangers of his situation on the elevator; and considerable evidence is given in support of that defence. It is also insisted that the plaintiff was wrongfully, and against warning, riding on the elevator, and therefore at his own risk, there being stairways for going from one floor to another. We have carefully considered the' evidence, and are of opinion that the Court below was well warranted in declining the defendants’ prayer to withdraw the case from the jury. But, inasmuch as we find it necessary to reverse the judgment and remand the case for a new trial, on some of the exceptions taken, we refrain from a critical analysis of the evidence in support of the claim of the plaintiff, hut leave that to the jury, whose province it will he to draw their own conclusions therefrom. But in saying. that the case was properly submitted to the jury on the facts, we are not to be understood as intimating an opinion as to the weight of evidence, or that upon the whole evidence the weight thereof preponderates the one way or the other. We simply say that there was sufficient evidence to he considered by the jury, and that upon the whole evidence it was for the jury to say, under the instructions of the Court, what was the just result of the facts before them. There is no doubt, that where an elevator is erected in a factory or warehouse, and is intended to be used only for the purpose of carrying and transferring goods and materials from one part of the building to another, and the employes in the establishment, familiar with the construction and operation of the elevator, and the purpose of its construction, ride thereon under a mere im — 389 — plied license, for their own pleasure or convenience, they must be taken to accept whatever risk that may be incident to such construction and operation; and, in such case, they can only require of the defendant the use of ordinary care either in the construction or operation of the machine. O’Brien vs. Western Steel Co., 100 Mo., 182; Patterson vs. Hemenway, 148 Mass., 94. But an elevator is in many respects a dangerous machine, and though it may be primarily intended only as a freight elevator, yet, if the employes, in the course of their employment, are authorized or directed to use the elevator as means of personal transportation, the employer, controlling the operation of the elevator, is required to exercise great care and caution both in the construction and operation of the machine; so as to render it as free from danger as careful foresight and precaution may reasonably dictate. Nothing short of this will excuse the defendant, unless it appear that the plaintiff himself, or the party under whom the plaintiff is allowed to claim, was guilty of direct contributory negligence to the production of the disaster. Peoples’ Bank of Balto. vs. Morgolofski, 75 Md., 432; Treadwell vs. Whittier, 80 Cal., 575. This last case referred to contains quite an exhaustive examination of the whole subject; and while most of the propositions there maintained are unquestionable, there are some to which we are not called upon, by the requirements of this case, to accede. In this case, neither party would seem to have any ground whatever to complain that he did' not get the full benefit of the law applicable to the case, in the instructions granted. It is to be regretted, however, that so many instructions, by separate prayers by both parties, concluding to the right to recover or against the right, were given. They were rather calculated to perplex than simplify and clearly instruct the jury as to the law of the case. In such case of multiplicity of — 390 — prayers there is always danger that the jury, in their perplexity, may disregard the instructions altogether. We do not perceive, however, that there is any such error in any of the prayers granted at the instance of the plaintiff as would call for a reversal of the judgment, if the case stood upon the instructions alone. But in the rulings upon the questions of evidence, as presented in the bills of exception, we do find error that requires reversal. In the first hill of exception, it appears that the plaintiff was allowed, against the objection of the defendants, to give in evidence, by one of the employes in the factory, that upon a prior occasion, and before the plaintiff entered the service of the defendants, an accident had happened to the witness of a character somewhat similar to that which happened to the plaintiff, hut on another elevator in the establishment, of like structure to that upon which the plaintiff was hurt, and of which prior accident the general superintendent had notice. The witness, according to her testimony, was, with other girls, employes, riding on the elevator, going up to the fifth floor of the building to her work, and while standing on one side of the platform, and being crowded to the edge thereof, her foot was caught in the shaft, and her ankle was injured, which caused her to remain at home for two months: That when hurt she was standing with her hack close to the rail on that side of the elevator, and the crowd pushed her foot or heel through the rail and beyond the edge of the elevator platform on which she was riding, and it was caught in the shaft: That the distance or space between the edge of the platform and the side of the shaft was some two or three inches. All the circumstances of that accident were allowed to go to the jury. This evidence, we think, was clearly inadmissible. It was wholly collateral to the real issue on trial in this — 391 — case. It could not legally form the basis of any well founded presumption as to the existence of negligence on the part of the defendants, as the direct cause of the injury to the plaintiff. It most likely had the effect to distract the attention and mislead the minds of the jury from the real issue in the case, and to produce a prejudice against the defendants. It would seem to be well settled upon the soundest principles, that evidence of other similar occurrences, on other occasions, is not admissible for the purpose of raising a presumption that the accident complained of happened in a particular manner, or that the accident occurred without the fault of the plaintiff, but by the neglect and want of care of the defendants. The facts of the particular transaction are the only legitimate evidence of the injury and the manner and cause of its occurrence, and not other and different occurrences. Cleveland, etc. Railway Co. vs. Wynant, 114 Ind., 525, and the cases there cited; Maguire vs. Middlesex Railroad Co., 115 Mass., 239; Hudson vs. Chicago & N. W. R. Co., 59 Iowa, 581. This is not analogous to the case of an attempt to affect a defendant with knowledge of a negligent habit of an employe, as in the case of Baltimore Elevator Co. vs. Neal, 65 Md., 453, nor to that of a case of a latent defect in machinery, or want of repair in a road or bridge, and the simple fact of a former accident is allowed to be proved as means of affecting the defendant with or bringing home to him, knowledge of such supposed negligent habit, or defect or want of repair. But here, the former accident, occurring to the witness, did not happen on the same elevator upon which the plaintiff received his injury, nor did that accident happen under the same condition. The fact, therefore, was wholly collateral. It does not appear that the witness ever sued the defendants for her injury; but if she had sued and recovered judgment, that judgment would not be admissible in this case to prove or afford — 392 — the foundation for a presumption, that the elevator upon which the plaintiff was hurt, was dangerous, or that the-accident was occasioned by the fault of the defendants, or to negative the existence of contributory negligence of the plaintiff. And if the judgment could not be-admitted for any such purposes, though the defendants, may have had their right, and exercised it, of defending against such judgment, it is difficult to perceive upon what principle the circumstances of the original transaction of the former accident could be received in evidence. The occurrences were independent, and there-is no necessary evidentiary connection between them. The rule in regard to the relevancy of evidence is fundamental, and is well defined. It excludes, says Professor Greenleaf, “all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute;, and the reason is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover the adverse party, having had no notice of such course of' evidence, is not prepared to rebut it.” 1 Greenl. Ev., sec. 52. It is clear, therefore, that there was error in-the first exception. The second, third, and fourth exceptions may he considered together. It appears that this case has been twice tried, the verdict on the first trial having been set aside by the Court; and in both trials Dr. Brewer was-examined as a principal medical witness for the plaintiff. He proved that he had attended the plaintiff and treated his injury, and that his bill for such services-was unpaid. It was proposed to he asked of Dr. Brewer,, on cross-examination at the last trial, whether he had not said, in urging the settlement of another accident case, in which he was 'also a witness for the plaintiff in that case, that he, Brewer, as the medical witness on. — 393 — the first trial of this case, “had been instrumental in getting a big verdict for the plaintiff.” This was objected to by the plaintiff, and the objection was sustained by the Court. In the course of the examination of the same witness, he stated that he had an interview with Henry Wise, Sen., the father of the defendants, in regard to settling this case out of Court, and that the father had acknowledged that the accident was the fault of the sons, and that' he, the father, said that he had always been afraid of an accident there, and that he was willing that the matter should be settled; but requested the witness to see the sons, and talk with them about it, which the witness declined to do. The defendants then called a witness by whom they proposed to prove that after the first verdict in this case, and before the Wiener Case (the other case referred, to by Dr. Brewer,) was tried, Dr. Brewer had come to see witness at his factory, and had urged him to settle Wiener’s Case, without going to Court, using as an argument for such course the fact that he, Brewer, had been the medical expert witness for the plaintiff in this case on the first trial, “'and had been instrumental in getting a big verdict for him.” The defendants also proposed and offered to prove by Henry Wise, Sen., the father of the defendants, that in the conversation with Dr. Brewer, referred to by that witness, he did not say that his sons expected an accident on their elevator, and that it was their fault that the plaintiff was hurt; or that he would, if he had his way about it, settle the case. These offers were objected to by the plaintiff, and the objection was sustained. In these rulings we think there was error. If it -was true that the witness had stated, and urged as a reason for settling another case out of Court, in which he was a medical witness, that he had been, as such medical witness, the instrument of getting a big verdict for the — 394 — plaintiff on a former trial of this case, it was certainly material to the proper appreciation, and weight to- he given to the evidence of that witness on a subsequent trial of the same case, that the jury should understand how or in what manner he had thus been the instrument of procuring such verdict; — whether by proper or improper means. That was clearly within the scope of a proper cross-examination. By means of such cross-examination, as said by Greenleaf, “the situation of the witness with respect to the parties, and to the subject of litigation, his interest, his motives, his inclination, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discrimination,. memory and description, are all fully investigated and ascertained, and submitted to the consideration of the jury, before whom he has testified, and who have thus had an opportunity of observing his demeanor, and of determining the just weight and value of his testimony.” 1 Greenl. Ev., sec. 446. This general doctrine and scope of cross-examination is fully sanctioned by this Court, in the case of Blessing vs. Hape, 8 Md., 31. And upon the wifyress denying the use of the language imputed to him, it would be competent to prove what he did say, not with the view of having a direct effect on the issue, but to show what was the state of the mind of the witness, his relation to the plaintiff, and his motive and temper in the particular transaction; so as to enable the jury to determine the weight due to his testimony; and this is in no proper sense collateral to the inquiry. Atty. Genl. vs. Hitchcock, 1 Exch., 100; 1 Stark. Ev., (9th Ed.) 189. It is equally clear, we think, that the evidence proposed to be given by Henry Wise, Sen., the father of the defendants, as set out in the fourth bill of exception, was admissible. It was to contradict the testimony of — 395 — Dr. Brewer, relating to a conversation had with Henry Wise, Sen., in which the latter is represented as having admitted that the accident to the plaintiff had occurred by the fault of the defendants, and that he had expected an accident to occur where it did. For though it appears that this testimony of Dr. Brewer in relation to the conversation with Henry Wise, Sen., was volunteered and not in response to any direct question relating to such conversation, yet the defendants had the right either to move to have it stricken out or to repel it, by showing that such conversation never took place. Blewett vs. Tregonning, 3 Ad. & Ell., 554; 1 Greenl. Ev., sec. 461; 2 Tayl. Ev., sec. 1324. (Decided 2nd December, 1892.) It follows that for the errors in the first, second, third and fourth exceptions, the judgment must he reversed, and a new trial awarded. Judgment reversed, and new trial awarded.