McIntyre v. Monarch Elevator & MacHine Co.

BARNHILL, J. dissenting.

WINBORNE, J., concurs in dissent. This was an action to recover damages for a personal injury alleged to have been caused by the negligence of defendant Monarch Elevator and Machine Company, hereinafter called the Elevator Company.

It was alleged that the Elevator Company while installing certain equipment for use in a passenger elevator in the building of Gilmore Clinic, Inc., had moved the elevator to the second floor and negligently left open and unguarded the door of the elevator shaft on the first floor, and that plaintiff who had entered the building for the purpose of receiving medical attention fell into the opening and was injured. The defendant Elevator Company denied negligence on its part, pleaded contributory negligence on the part of plaintiff, and further on its motion had Gilmore Clinic, Inc., made party defendant and filed cross-action against the latter for contribution in the event plaintiff should recover against the Elevator Company. Gilmore Clinic, Inc., answered denying liability to its codefendant or the plaintiff.

At the close of plaintiff's evidence the motion of defendant Elevator Company for judgment of nonsuit was allowed, and judgment was entered dismissing plaintiff's action, and also dismissing the Elevator Company's cross-action against Gilmore Clinic, Inc.

Plaintiff excepted and appealed.

Defendant Elevator Company appealed from so much of the judgment as dismissed its cross-action against its codefendant. PLAINTIFF'S APPEAL. The judgment of involuntary nonsuit entered by the court below raises the question of the sufficiency of the plaintiff's evidence to carry the case to the jury.

The evidence offered tended to show that the circumstances of the plaintiff's injury were substantially these: The defendant Elevator Company was engaged in installing certain electrical equipment for automatic operation of the elevator in the building of defendant Gilmore Clinic, Inc., in Greensboro. The elevator had previously been installed for manual operation and had been so operated for several months. The work of adding the additional wiring was being done by the Elevator Company under contract with Gilmore Clinic, Inc., for the use of the members of the medical profession associated with Gilmore Clinic and having offices in the building and for the convenience of their patients who came there for medical attention and service. On the first floor the doors to the elevator shaft were arranged to slide back on each side leaving a space 4 feet wide and measuring 7 feet from top to bottom, affording entrance to the elevator cage when in use. The elevator was located at the rear end of a corridor 6 feet wide and was 28 feet from the front door. On the occasion alleged, 25 November, 1947, about 4 p.m., the plaintiff, 24 years old, an expectant mother, entered the building for the purpose of being treated by Dr. Wood whose office was on the second floor. She had by direction of the physician visited this office twelve times. On those occasions the elevator had been operated by an employee of Gilmore Clinic, Inc. Plaintiff's vision was impaired but she could see large objects at some distance. Plaintiff testified she entered the front door and was walking down the lighted corridor toward the elevator when "without any warning whatsoever I completely blacked out and knew nothing until after being transferred to Wesley Long Hospital . . . I came to." She was picked up unconscious on the bottom of the elevator shaft, 4 1/2, feet down. There was evidence tending to show that the employees of the Elevator Company, in order to install the equipment had opened the outer doors of the shaft on the first floor and raised the cage nearly to the second floor, so that the workman in charge could walk up the stairs and get on top of the cage to do the work on which he was engaged. This placed the bottom of the cage about 18 inches below the top of the opening, leaving 5 1/2 feet clearance. The sliding or hatchway doors of the shaft were left open. One of defendant's employees had gone through this opening down into the pit, which was 6 feet square and unlighted, and was on a stepladder at the time plaintiff fell. The defendant Elevator Company's employee in charge of the work was on top of the cage when his assistant called him and he immediately came down and found plaintiff lying on the floor of the pit unconscious. There was no barrier or protection for the open elevator shaft. The manager of Gilmore Clinic, Inc., had pasted a narrow typewritten slip over the push button at the elevator door "elevator out of order, use stairway." All the work done before by defendant had been done with shaft door closed. At times the Elevator Company's employees at request of the manager of Gilmore Clinic, Inc., had operated the elevator for the convenience of patrons.

The doors of the elevator shaft were left open by defendant Elevator Company's employer, but the width of the open space does not clearly appear. The only witness as to this was W. W. Dance, defendant Elevator Company's employee in charge of this work. He was offered by plaintiff. He testified, "The elevator doors were open. The hatchway doors were open. The elevator doors were open when I started up" to the second floor. On cross-examination he said, "the hatchway doors were partially open. I would say there was about 18 inches space between them. The elevator doors were open wide enough for Mr. Dillenbeck (his assistant in the pit) to come through . . . If he was to ease through he could possibly get through without disturbing the door. If he was to brush through there was a possibility he could push them wherever he wanted to." The man in the pit had only been down there a "couple of minutes" when the plaintiff fell. This man was not available as a witness at the trial.

There was no evidence as to the manner or cause of plaintiff's fall other than her statement that as she walked down the corridor she blacked out or fainted and the testimony of Mr. Dance that she was found unconscious at the bottom of the open shaft.

The plaintiff sustained serious injury from her fall, but the baby arrived in due time unharmed.

The evidence offered by plaintiff, considered in the light most favorable for her, tended to show that the defendant Elevator Company's employees, while working on the elevator cage in a building in which the elevator was in use by occupants and their invitees, left the door to the elevator shaft open without barrier or guard, and with only a narrow typewritten slip over the push button "elevator out of order." Whether under the circumstances this was a sufficient warning, and whether the defendant failed to exercise due care in the performance of a duty incumbent upon it, present questions, we think, for the determination of the jury. Drumwright v. Theatres, Inc., 228 N.C. 325, 45 S.E.2d 379; Ross v. Drug Store, 225 N.C. 226, 34 S.E.2d 64; Williams v. Stores Co., Inc.,209 N.C. 591, 184 S.E. 496; Hunt v. Meyers, 201 N.C. 636, 161 S.E. 74.

In Jones v. Bland, 182 N.C. 70, 108 S.E. 344, 16 A.L.R. 1383, the plaintiff in a hotel lobby approached the elevator for the purpose of using it. The elevator door was open but the carriage had been moved to an upper story. Plaintiff fell in the open shaft and was injured. There was also the fact that due to the darkness of the afternoon and color of the paint ordinary observation did not disclose the opening. This Court held that if these facts were accepted a primary case of negligence was made out carrying the case to the jury. Stewart v. Carpet Co., 138 N.C. 60, 50 S.E. 562; Womble v. Grocery Co., 135 N.C. 474, 47 S.E. 493; 18 Am. Jur. 546; 45 C.J. 867, 870. In Rosenbaum v. Shoffner, 98 Tenn. 624, recovery for injury sustained by one who stumbled and fell into an open elevator shaft was affirmed. One who has taken over control of an elevator, in use in a building, for the purpose of repair is chargeable with the duty of exercising reasonable care for the safety of those who rightfully use or attempt to use it. Otis Elevator Co. v. Wilson,147 Ky. 676; Fox v. Dallas Hotel Co., 240 S.W. 517.

Did the Elevator Company's conduct in this respect constitute negligence, and, if so, did plaintiff's injury proximately result therefrom? Proximate cause of an injury is generally defined as the cause which produced the injurious result complained of in continuous sequence from the original wrongful act, without any new or intervening cause, and without which it would not have occurred, and one from which one of ordinary prudence would have foreseen that some such result was likely under the circumstances as they were known or ought to have been known at the time. Ramsbottom v. R.R., 138 N.C. 38,50 S.E. 448; Paul v. R.R., 170 N.C. 230, 87 S.E. 66; Whitt v. R, and,187 N.C. 805, 123 S.E. 84; Mills v. Moore, 219 N.C. 25,12 S.E.2d 661; Luttrell v. Mineral Co., 220 N.C. 782, 18 S.E.2d 412; Lee v. Upholstery Co., 227 N.C. 88, 40 S.E.2d 688. One of the elements of proximate cause essential in the establishment of actionable negligence is foreseeability. Lee v. Upholstery Co., supra; Shaw v. Barnard,229 N.C. 713, 51 S.E.2d 295; Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147; Beach v. Patton, 208 N.C. 134, 179 S.E. 446; Gant v. Gant, 197 N.C. 164,148 S.E. 34; Harton v. Tel. Co., 141 N.C. 455, 54 S.E. 299. Liability in law for a negligent act is dependent upon whether the injurious consequences flowing therefrom were such as could and should have been foreseen and by reasonable care and prudence guarded against. Osborne v. Coal Co., 207 N.C. 545, 177 S.E. 796. It must be made to appear that the injury was the natural and probable consequence of the negligent act and ought to have been foreseen in the light of attendant circumstances. Fore v. Geary, 191 N.C. 90, 131 S.E. 387; R.R. v. Kellogg, 94 U.S. 467. But it is not necessary that the wrongdoer should have foreseen the particular injury which resulted "provided that in the exercise of ordinary care he might have foreseen that some injury would likely follow from his negligence." Hudson v. R.R., 142 N.C. 198, 55 S.E. 103; Hall v. Rinehart, 192 N.C. 706, 135 S.E. 790; Cole v. R.R., 211 N.C. 591 (598), 191 S.E. 353; Bechtler v. Bracken, 218 N.C. 515 (524),11 S.E.2d 721. It is sufficient if by the exercise of reasonable care the defendant might have foreseen that some injury would result from his act of omission or that consequences of a generally injurious nature might have been expected. Sawyer v. R.R. 145 N.C. 24, 58 S.E. 598. In Lee v. Upholstery Co., 227 N.C. 88, 40 S.E.2d 688, cited by the defendant, the elevator was located in a manufacturing plant, for the use of employees in handling goods going out, to be loaded on trucks. It was not for the use of the public or truckers in gaining entrance into the building. 45 C.J. 867. In the instant case the elevator was a passenger elevator for the use of the public, and particularly for the use of ill persons seeking medical assistance, some with defective vision, like the plaintiff, who would be expected to approach the elevator for the purpose of entrance to the upper story. In the Lee case the truck on which plaintiff was working had been loaded from the elevator and then the truck was moved away "a convenient distance." The elevator was moved up, presumably to bring down other goods. While the plaintiff was tying down the load with a rope, the rope slipped out of his hand and he staggered back four or five steps, and fell in the opening. It was there held it could not have been foreseen that plaintiff, an experienced workman, familiar with the premises, in full possession of his faculties, would lose his balance and step backward five steps into the pit. We think this case in essential features is distinguishable and is not controlled by the holding in the Lee case.

The defendant Elevator Company contends that the evidence that the aperture between the sections of the door of the elevator shaft was only about 18 inches wide should be regarded as showing that it could not reasonably have been foreseen that an adult person would or could fall through. But on the other hand it appears that defendant's workman had a few moments before passed through the same opening and was at work on a stepladder 4 1/2, feet below the first floor level. Whether he took the stepladder with him at this time does not appear. In any event, according to plaintiff's evidence, the opening was sufficiently wide for her to pass through. Like Mercutio's wound, "``Tis not so deep as a well, nor so wide as a church door; but 'tis enough." Romeo and Juliet, Act III.

What is the proximate cause of an injury is ordinarily a question for the jury. Rarely is the court justified in deciding this question as a matter of law. Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320. In the language of Justice Barnhill in Conley v. Pearce-Young-Angel Co.,224 N.C. 211, 29 S.E.2d 740, "It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not But this is rarely the case." Likewise, as stated by Justice Seawell in Montgomery v. Blades, 218 N.C. 680, 12 S.E.2d 217, "Usually the question of foreseeability is one for the jury."

Both the building and the elevator were for the use of those needing medical service who might he expected to pass down the corridor and attempt to use the elevator which was known to be there for their convenience. These were circumstances within the knowledge of the defendant when it left the doors of the elevator shaft open. Whether the defendant was negligent, and, if so, whether such negligence was the proximate cause of plaintiff's injury, and whether the injury was one which in the exercise of due care defendant could and should have foreseen and by reasonable diligence guarded against, were questions for decision by the jury under appropriate instructions from the court.

Can the nonsuit be sustained on the ground of contributory negligence on the part of the plaintiff? We think not. On this point we have the plaintiff's testimony that as she walked down the corridor she suddenly and without warning fainted. Whether this was due to her condition or some inherent weakness does not appear. She fell through the open door of the elevator shaft and was injured. The burden of proof as to contributory negligence was upon the defendant Elevator Company. The rule is that nonsuit on this ground should not be granted "unless the plaintiff's evidence, takes in the light most favorable for him so clearly establishes such negligence that no other reasonable inference or conclusion can be drawn therefrom." Dawson v. Transportation Co., ante, 36,51 S.E.2d 921; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307. "It is the settled rule in this jurisdiction that judgment of nonsuit on this ground can be rendered only when a single inference, leading to that conclusion, can be drawn from the evidence." Hampton v. Hawkins,219 N.C. 205, 13 S.E.2d 227; Atkins v. Transportation Co., 224 N.C. 688,32 S.E.2d 209; Winfield v. Smith, ante, 392, 53 S.E.2d 251. We think the evidence sufficient to entitle the plaintiff to have her case submitted to the jury, and that there was error in granting the motion for judgment of nonsuit.

APPEAL OF DEFENDANT MONARCH ELEVATOR AND MACHINE CO.

The defendant Elevator Company appealed from so much of the judgment as dismissed its cross-action against Gilmore Clinic, Inc. In the judgment it was set out that the court was "of opinion that as a matter of law the motion of nonsuit by Monarch Elevator and Machine Co. having been allowed, the cross-action against Gilmore Clinic, Inc., should be dismissed," and accordingly judgment was entered dismissing this appellant's cross-action.

Without undertaking to determine on this record whether or not the defendant Elevator Company would be entitled to contribution under G.S. 1-240 from its codefendant, in the event of recovery by the plaintiff, we think the court was in error in dismissing the cross-action at this stage of the litigation. The judgment of nonsuit having now been held to have been improperly allowed, the judgment below should not be held to prevent defendant Elevator Company from having its day in court on its cross-action to establish liability of Gilmore Clinic, Inc., as joint tort-feasor, if it can. Whether appellant can succeed in its cross-action in the event of ultimate recovery by the plaintiff is another matter.

The parties are entitled to proceed in the cause as if the motion for nonsuit by defendant Elevator Company had been originally denied. See Pascal v. Transit Co., 229 N.C. 435 (442), 50 S.E.2d 534; Smith v. Kappas, 218 N.C. 758, 12 S.E.2d 693. Bourne v. R.R., 224 N.C. 444,31 S.E.2d 382, related to the effect of a nonsuit on defendant's counterclaim.

On plaintiff's appeal: Reversed.

On defendant Elevator Company's appeal: Reversed.