Masonic Fraternity Temple Ass'n v. Collins , 210 Ill. 482 ( 1904 )

Mr. Justice Scott

delivered the opinion of the court:

At the close of all the evidence a motion was interposed for an instruction directing the jury to find for the defendant. The action of the court in overruling that motion is assigned as error. This assignment presents the question, is there in this record.any evidence which, with the inferences reasonably to be drawn therefrom, tends to prove the averments of the declaration?

Tiie evidence that the operator stopped at the thirteenth floor without calling that floor, or the evidence that the operator started the elevator upward before the door at that floor was entirely closed, warranted the submission of the question of appellant’s negligence to the jury.

It is urged, however, that there is no evidence that Collins, the deceased, was in the exercise of due care for his personal safety, but, on the contrary, that all the evidence in the case shows that he was guilty of contributory negligence, in that he attempted to step out of the elevator after it had started upward from the thirteenth floor. Considering the evidence most favorable to appellee, we find that as the cage approached that floor it contained four passengers.' None of them had called any floor below the sixteenth except the deceased, who had called the fifteenth. The elevator had not stopped since leaving the fourth floor except at the tenth floor. The operator had called no floor since leaving the ground. When he stopped at the thirteenth floor Collins might well understand that they had arrived at the fifteenth floor. When the door was opened, the lady, May Fleming, stepped out, and she testifies that when she had gone four or five steps she looked around; that the cage was then ascending and Collins was crouching between the floor thereof and the top of the framework of the door. Mary W. Grace was also a passenger at the time of the accident. She testifies that shortly before May Fleming stepped out, Collins stepped from behind her, Mary W. Grace, so that he would be near the door; that after May Fleming stepped out the door was open about three feet and that Collins was then just about to step out; that she did not observe whether the elevator was then in motion; that the last she saw of Collins he was crouching down between the floor of the cage and the top of the door-frame; that his head and half of his body were outside; that the door was still open about a yard, and that she then turned away and saw no more of him; that when she last saw him in that position the floor of the cage was about half way between the thirteenth and fourteenth floors; that the elevator gave a “kind of a jar" and afterwards stopped, and that when she again looked, a moment later, Collins had disappeared. His body was afterward found, cut in two, at the bottom of the elevator shaft. It is true that it is not expressly stated by either of these witnesses last mentioned that the cage was standing still when Collins started to get out. The elevator was one which ran swiftly. If, at the instant before it started upward from the thirteenth floor, Collins, following immediately after Miss Fleming, had started to take the step which would land him outside the elevator and the cage had then moved swiftly upward, the momentum of his body would haveWarried him forward without his volition, and the cage ascending would have brought him into the position described by Miss Fleming" and Miss Grace at the time they saw him crouching between the floor of the cage and the top of the door-frame. We think it might reasonably be inferred from the testimony of these two ladies, taken in connection with the facts shown by other evidence and above recited in this opinion, that the deceased started to leave the cage while it was standing at the thirteenth floor. The motion was therefore jiroperly denied.

By the first instruction given on the part of the plaintiff the jury were told that the defendant, in operating the elevator, is a common carrier, “and is subject to the same rules and laws concerning negligence as are applicable to other common carriers of passengers.” It is urged that this instruction is erroneous, for the reason that the jury were thereby left to speculate as to what duties the law casts upon a common carrier. If this instruction stood alone this objection would be good and would require the reversal of the cause, for the reason that the jury would have been left to determine for themselves a question of law. The instructions as set out in the abstract are not numbered. One of those given, however, advised the jury that before they could find the defendant guilty they must find that the plaintiff had established, by the greater weight of the evidence, “that the negligence of the defendant, if you find there was any, as charged in one or more counts of the declaration, which are submitted to you, was the proximate cause of the injury which resulted in decedent’s death, and that no negligence on his part contributed to said injury.” By another instruction the jury were given a correct definition of the “ordinary care” which the plaintiff;was required to show had been exercised by the deceased: By still another ^instruction they were advised that if they believed the defendant was guilty of negligence in some manner but was not guilty of the negligence charged in the declaration, they should find for the defendant; and by another they were advised “that the law as given in the court’s instructions is the law of the case, and you must follow the same whether you think the law is right or not.” While the language quoted from the first instruction should have been omitted therefrom, still, when that instruction is considered in connection with other instructions given, to which we have above referred, we are of opinion that no harm came to appellant, and that the instructions, as a series, stated the law correctly. The later instructions advised the jury that there could be no recovery unless the negligence charged in the declaration was proven. The jury were therefore not left to determine for themselves what negligence would warrant a verdict in favor of the plaintiff. Under such circumstances the judgment should not be reversed. West Chicago Street Railroad Co. v. Scanlan, 168 Ill. 84.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.