Dashiell v. Washington Market Co. , 10 App. D.C. 81 ( 1897 )

Mr. Justice Morris

delivered the opinion of the Court:

This is a suit for damages for the alleged negligence of the appellee, the Washington Market Company, in causing the death of the appellant’s intestate, Albert R. Sakers. The case was determined in the Supreme Court of the District of Columbia by a peremptory instruction to the jury to render a verdict tor the defendant on the ground that the accident which caused the death was due to the negligence of the deceased himself; and from this ruling the plaintiff has prosecuted the present appeal.

The substantial facts, as developed by the record, would appear to be these: The appellee, the Washington Market Company, owns and operates the Center Market, in the city of Washington, in which many persons, as its tenants, together with their employees, carry on the business of marketing. Among these persons was one Brown, in whose employment was the plaintiff’s intestate, Sakers, a bright and intelligent boy of about the age of nineteen years, and who had been in the employment of Brown in the market house for upwards of a year before the occurrence of the accident which caused his death.

In the market building was an elevator, used for the purpose of conveying the tenants ánd their employees from one floor to another of the building in the course of their business, the fact apparently being that, while the main business was conducted on the lower or ground floor of the market, the dealers kept their supplies, or part of them, on the second or upper floor, to which access was had by this elevator, as well as also by means of a staircase. There was an elevator boy employed by the appellee to operate the elevator, but this boy was often absent, and in that event the tenants and their employees often operated the elevator for themselves. Against so doing, however, they had been warned by the officers of the company; but whether any such warning had ever been given to the deceased, or had been heard by him, does not appear.

The elevator was of a peculiar construction, and evidently •of a dangerous character. It was provided, by way of attachment, with a door which automatically closed when the elevator ascended and opened when the elevator descended; or, rather, the door descended as the elevator ascended, •and ascended as the elevator descended. This door was supported and operated by a hempen rope about an inch in diameter attached to the upper part of the door; and, which, passing through and over certain pulleys, was attached at its other end to hooks of the kind known as sister hooks, which were passed through an eye bolt in the top of the elevator and were kept in place by being wrapt and tied with a cord. There was a slack, as it is called, in this rope which connected the door with the elevator carriage, whereby a jolt or jerk was caused, when the elevator in its descent picked up the weight of the door; and this jolt or jerk produced friction which caused the rope to wear out. Unless due care was taken to keep the rope in good condition this fraying or wearing out would cause the door to become detached, and would permit it to fall. It had in fact fallen from this cause about two weeks before the occurrence of the accident of which complaint is made here; and the break had been repaired on that occasion by the elevator boy by tying the sister hooks together by means of an ordinary string.

It appears that, notwithstanding the frailty of all this device, it was the usual mode for operating elevators of the class here used.

On January 7, 1891, the deceased, Albert R. Sakers, had occasion to use the elevator in the business of his employer; and not finding the elevator boy at his post, he entered the elevator alone, and undertook to operate it himself. He ascended to the floor above in safety, procured some desired supplies, and proceeded to descend,'still operating the elevator himself. When the elevator had descended to the level of the lower floor, where he had entered, and he was about to get out, it started for some unknown reason to ascend again. Whether this was through some defect in the machinery, or through inconsiderate management on the part of the deceased, does not appear. When it had ascended some distance he undertook to jump out, and was struck and killed by the descending door. His head was caught between the elevator platform and the door. When soon afterwards,in the attempt to extricate him, the door was torn away, he was found lying on the floor of the elevator, his head crushed by the door, and his hand upon the rope by which the elevator was operated. He was still living, but died about an hour after-wards at one of the hospitals.

These facts are all brought out in the testimony given on behalf of the appellant, the plaintiff below, which is the only testimony in the case; for the motion for a peremptory instruction to the jury was made and allowed at the end of the plaintiff’s case. And upon these facts the appellant bases the theory that the market company had negligently permitted therope,by which thedoorwas attached to the elevator carriage, again to become frayed and worn, and to break, and thus to cause or permit the door to fall, by the falling of which the deceased was killed. We should note, however, that there is some additional testimony bearing upon the subject, but which is not free from discrepancy. It is stated, for instance, that “the door did not fall suddenly until after it struck Sakers, and that it went slowly after it struck him;” that “it went fast before it struck him; that it went faster than the elevator went up; after it struck him it went slowly;” that when Sakers was extricated “it w7as found that the elevator had stopped at an elevation of about four feet above the floor of the market;” and “that the door, after striking Sakers, went all the way down solid to the ground.”

Were the question here one merely as to the negligence of the defendant,the appellee, undoubtedly the testimony would have been amply sufficient to be submitted to a jury. If the market company itself, by its employees, had been operating this exceedingly dangerous machine, as it is shown to have been, at the time of the accident to the deceased, very plainly its liability would have been a matter for the determination of the jury. But the ruling of the court below in the case, we understand both from the record and the argument of counsel, to be based entirely upon the contributory negligence of the deceased. And if, upon the undoubted facts of the case, with all the proper inferences to be drawn therefrom, there was such contributory negligence, we must, of course, affirm the ruling from which the present appeal has been taken.

The principles of law applicable to the subject of contributory negligence would seem now to have been well settled by repeated adjudications of the courts, and for us most of all by the decisions of the Supreme Court of the United States; and in most cases now it remains to us only to apply those principles. The province of the court and jury, both with respect to alleged negligence on the part of a defendant and alleged contributory negligence on the part of a plaintiff, is well stated in the latest authoritative utterance by the Supreme Court on the subject. In the case of Texas and Pacific R. Co. v. Gentry, 163 U. S. 353, 368, that court, by Mr. Justice Harlan, citing and summarizing previous decisions, said:

“When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” Grand Trunk Ry. Co. v. Ives, 144 U. S. 408.

The court below seems to have thought, and we think, that the action of the deceased in the case was such that only one reasonable inference can be drawn from it; and that is, that, when he entered this elevator car, without permission, express or implied, from the defendant company, and without the knowledge of that company, the risk of its safe management which he undertook was exclusively his own risk. If that elevator was then in an unsafe condition, there was all the greater reason why he should not have used it. If he did not know that it was in such unsafe condition, he has no right to charge his ignorance to the account of the company, which did not invite his use of it, had no knowledge of such use, and, so far as we may justly infer from the record, protested against the operation of the elevator by any one other than its own employees. As well might one enter a livery stable, and without the knowledge or consent of the keeper of the stable, harness a fractious horse to a defective conveyance, ride away, and, if injured by some breakdown of the conveyance, attempt to hold the keeper of the stable to liability. If there had been any proof of usage or custom on the part of the market men to use this elevator themselves, with the sanction, express or implied, of the defendant company, the case would have been very different; but there was no such proof. On the contrary, the proof was, so far as it went, that the company would not permit any such use.

Again, the circumstances of the death of Sakers would indicate either that he attempted to jump from the ascending elevator, or that he unduly exposed his head to the descending door. Both of those were acts of rashness which it was incumbent on the plaintiff to. explain. Such acts, although rash in themselves, may be explained or excused by circumstances, as by the presence, or even the apprehension, of greater danger. But in the absence of all explanation, these acts must be taken to be, what in the usual course of conduct they are, acts of rashness, the consequences of which are to be charged to those who commit them. It is not proper to send them into a jury room for a jury to conjecture whether there might not be an excuse for them.

We are of opinion that the Supreme Court of the District of Columbia was right in its ruling in this case; and that its judgment should be affirmed with costs. And it is so ordered.