Morgan v. Bankers Trust Co. , 1911 Wash. LEXIS 1228 ( 1911 )

Gose, J.

(dissenting) — I think the instructions in this case are clearly erroneous. Introductory to the seventh instruction, the court said:

“In the operation of elevators in buildings such as that owned by the defendant Bankers Trust Company, the defendant has the right to assume that individuals using such passenger elevators and transacting business in such buildings are individuals in the usual and accustomed bodily health and strength.”

A part of the tenth instruction is in the following language :

“The defendant cannot be convicted of negligence in stopping so suddenly that a jar or recoil may or may not occur, nor can the defendant be convicted of any negligence in stopping an elevator in its building so suddenly and with such a jar as would not adversely affect the health of a person in a normal condition of health and strength. Accordingly, if you find from the evidence in this case that had a person in a normal condition of health and strength been in said elevator with said operator at the time plaintiff alleges she was injured, and if such person in a normal condition of health and strength would not have in any manner been hurt or injured by the manner in which it was stopped, then your verdict in this case should be for the defendant, even though you believe that the plaintiff might have received a shock that resulted in injury to her by and through the manner in which the elevator was handled by said operator, provided, any condition of bodily infirmity of the plaintiff was unknown to the operator of the elevator.”

We excerpt from the respondent’s brief the following pertinent language:

“Judging from the pleadings and the suggestions contained in the instructions, the case is one where a neurasthenic woman went into an elevator for the purpose of being transported, and while being so transported for her accommodation and to enable her to leave the elevator at a certain floor, the operator of the elevator stopped it suddenly and caused a recoil of several inches, which produced a slight jar which she claimed caused permanent and serious injuries.”

The applicable principle of law is stated in 6 Cyc. 598, as follows:

“The general rule as to the duty to care for the safety of its passengers is applicable in case of passengers who are suffering from some infirmity or disability. And certainly this is true, even if the servants of the carrier have no knowledge or reason to believe that the passenger is laboring under a disability. But the servants are presumed to know that persons in feeble health- may be passengers, and if such persons are injured by negligence in operating the train, they are entitled to recover, even though the injury would not have happened to a person in sound health.”

The instructions quoted are, in effect, that if the elevator was negligently operated, the respondent having no knowledge of the appellant’s infirmities, there could be no recovery unless the negligence was such as would have resulted in injury to a person in sound health. This is not the law. A common carrier of passengers is bound to know that the aged and infirm may be passengers, and if they are injured through its negligence, it is liable in damages for the injury sustained. This being true, I cannot agree with the conclusion reached by the majority. In order to affirm the judgment, we must presume that the plaintiff’s evidence did not make a prima facie case of negligence. The record before us negatives that presumption. We must assume, I think, as do counsel for the respondent in their brief, that evidence was presented to the jury that called forth the instructions. I think that it must be presumed from the record that the instructions were based upon the evidence, and that, in deñying a motion for a new trial, the court adhered to the view of the law which it had theretofore announced to the jury. In other instructions the court had correctly stated that the law holds a common carrier of passengers to the “highest practicable degree of care; the utmost care and diligence consistent with reason and practicability.” I think the instructions as an entirety fail to correctly state the law, and that they are misleading.

I therefore dissent.