Belvedere Building Co. v. Bryan

Pearce, J., delivered the opinion of the Court. The defendant below, the Belvedere Building Company, was on December 10th, 1903, engaged in conducting a public inn, known as the Belvedere Hotel, in a building in the city of Baltimore, and maintained and operated therein a passenger elevator for the transportation of the guests of the hotel, and those having business with them, or with the defendant, from one story of the building to another. The plaintiff, now the appellee, ⁵²³ while rightfully upon said elevator as a passenger, was thrown or fell from it, and sustained serious, permanent injuries for which he brought suit and recovered damages in the Baltimore' City Court, and from that judgment the defendant has appealed. The declaration contained two counts, the first of which is as follows: “i.

For that on the ioth day of December, A. D. 1903, the defendant was in possession of a building in Baltimore City and conducted in said building a public inn or hotel. That the persons in said inn or hotel were carried from the cellar to the different floors by means of a passenger elevator. That the movements of said elevator were under control, direction and operation of a servant of the defendant. That it was the duty of the defendant towards its persons who rightfully took passage on said elevator, to use the utmost care and diligence which human foresight could use to provide for the safety of said persons who rightfully took passage in said elevator.

That on the 10th day of December, A. D. 1903, the plaintiff visited said hotel to partake of an entertainment provided by the defendant for compensation for himself and others, and the plaintiff to reach the room provided by the defendant for said entertainment to be served, took passage in said elevator from office floor to reach the second floor of said inn or hotel; that as the plaintiff attempted to step from the elevator to the second floor; it suddenly dropped, striking him a severe blow on his left hip and crushing, contusing and lacerating the left thigh of the plaintiff and throwing him with a severe blow on the top of the rapidly descending elevator; that when the elevator passed the office floor of said building it commenced rapidly to ascend with the plaintiff on its top, and when in its rapid ascent it reached the second floor of said building, the elevator doors of'which were still open' the plaintiff fell or rolled from the top of said elevator to the said second floor. That the sudden dropping and ascent of said elevator as aforesaid was caused by the improper and defective construction and" maintenance of the machinery and its appliances, used in ⁵²⁴ its propulsion and movements; that the injury to the plaintiff, hereinafter set forth, was caused by the failure of the defendant to perform the duty they owed the plaintiff to provide said elevator with proper-machinery and appliances and to properly maintain the same. “That by reason of said negligence of the defendants in failing to properly control and maintain said elevator the plaintiff was seriously and permanently injured. That the left hip and thigh of the plaintiff was struck and caught between the side or edge of the rapidly descending or dropping elevator and the .shaft down which the elevator was falling or dropping, and crushed, contused and lacerated; that the body of the plaintiff received a severe blow as it fell or rolled from the top of the rapidly ascending elevator through the open elevator doors to the said second floor; that the viscera of plaintiff, by reason of said injuries and the shock incident thereto, were seriously injured and permanently impaired; that the brain and nerve centers of plaintiff, because of the severe shock caused by said, injuries, were seriously disturbed and permanently injured; and that in sundry other ways the plaintiff was severely and permanently injured and his organs and their functions permanently injured and impaired. “That the plaintiff before and at the time of his receiving said injuries was an attorney at law in the active practice of his profession; that his professional duties constantly require of him a vigorous exercise of his brain and mental powers; that the injuries aforesaid have permanently deprived the plaintiff of the power of continuously and vigorously exercising his brain and mental powers in the duties of his profession. That by reason of said injuries the professional business of plaintiff and its profits have been destroyed and he has lost and been deprived of large retainers, as well as gains and profits from fees and other remuneration and compensation usually received by lawyers in active practice. “That said injuries have caused the plaintiff to suffer great and excruciating mental and physical pain and suffering. “That the injuries aforesaid to the plaintiff were directly and ⁵²⁵ proximately caused jby the said negligence of the defendants, and the plaintiff did not by his negligence contribute to said injuries, but said plaintiff used ordinary and reasonable care in travelling on and leaving said elevator, whereby the plaintiff brings this suit to recover damages for the injuries aforesaid.” The second count differed from the first only in charging “That the sudden dropping and ascent of said elevator as aforesaid was caused by the negligence and carelessness of the servant of the defendant who was running said elevator and in charge of its operation and the running of the same; that the injury of the plaintiff hereinafter set forth, was caused by the negligence and carelessness ofsaid servant of defendant in opérating and running said elevator, and a failure of the defendants to perform the duty it owed the plaintiff to provide a servant who would exercise ordinary and reasonable care in operating said elevator when carrying guests as passengers.

That by reason of said negligence of the defendant in falling to have a servant who would' exercise ordinary and reasonable care in operating said elevator, the plaintiff was seriously and permanently injured.” ' This count did not charge any failure of duty to provide a properly constructed and equipped elevator. The only exception is to the ruling upon the prayers, of which the plaintiff offered three all of which were granted, and the defendant offered nine, of which the first and second were rejected, and all the others were granted. The plaintiff’s third prayer is in the usual form as to measure of damages, and no question is raised thereon, provided the case properly went to the jury. The plaintiff’s second prayer recites the facts necessary to be found in his view to justify his recovery, and his first prayer defines the degree of care required in his transportation as “the highest degree of care and diligence practicable under the circumstances.” These will be set out in full by the reporter.

The defendant’s first prayer sought to withdraw the case from the jury on the ground that there was no legally sufficient evidence tending to show that the injuries ⁵²⁶ of the plaintiff were occasioned by any negligence of defendant in failing to provide the elevator with proper machinery and appliances, nor by any negligence or carelessness in failing to provide a servant who would exercise ordinary and reasonable care in operating said elevator', nor by any negligence or carelessness of the servant in operating the same; and its second prayer sought to withdraw the case upon the ground that there was evidence legally sufficient to show that defendant had been guilty of any violation of any of the duties owed to the plaintiff as alleged in the declaration. All questions of contributory negligence were fully and fairly submitted by the defendant’s granted prayers. The defendant excepted generally to the granting of all the plaintiff’s prayers and to the rejection of its first and second prayers, and also excepted specially to the language of his second prayer “by reason of the negligence and carelessness on the part of the servant of defendant in operating the same,” because there is no legally sufficient evidence in the case in regard thereto, and also to the language of the same prayer “said elevator by reason of the negligence and carelessness on the part of the servant of the defendant, suddenly descended,” because there is no evidence legally sufficient to be submitted to the jury on the instruction. Both of which special exceptions were overruled.

The defendants rejected prayers and special exceptions require an examination of all the testimony. The plaintiff testified that he is an officer of the order of Heptasophs and that he had arranged with Mr. McCahan, the manager of the Belvedere Hotel, to serve for him on the evening of this occurrence, in a room upon the second floor of the hotel, a lunch for a number of visitors and guests of the order, to be paid for by him; this was paid to the hotel company by Mr. Tattersall, secretary of the order, and the amount repaid him by the plaintiff- While at lunch, he left the room, and took an elevator to the ground floor in company with Gov. Warfield one of the guests who was obliged to leave at an early hour. On returning to the elevator he thus details what occurred at the time of the accident. “I found the elevator ⁵²⁷ nearest the door waiting, and on entering it I told the elevator boy to let me off at the second floor.

The boy started the machinery and the elevator went up some little distance; I cannot say whether he reched the second floor or not, because I did not see it; but the elevator was brought down somewhere about six inches, I should say, by the boy; I was watching his hand on the lever, the left hand, until he reached the centre, when he reached out across where I was standing, unlatched the door, and threw it back with his right hand in front of him, and just as I was leaving the elevator with my body, reaching out over into the hall, with my right foot stepping to the hall, I heard a click, and like a flash the elevator went down, and my weight still remaining on my left foot (it had not been-transferred to my right foot) I heard the click, and like a flash the elevator went down, and the first blow I got was somewhere in the region of the spine; this hip was struck (indicating); the whole body was forced back towards the elevator and I fell in on top of the elevator shaft; as I did so, I screamed, “My God, do not kill me;” we went down some distance, T take it possibly 12 or 14 feet, and as quick as a flash the elevator shot up again and T -was lying somewhat at an angle on the roll of the elevator, kept there by the confines of the shaft. As soon as we came up, the elevator door being still open, my body either slipped or rolled, and I caught the door, and I again screamed and rolled out to the floor, and lost sight of the elevator.” Upon further examination in chief, he said the elevator had come to a full stop before the door was opened and he attempted to step out. On cross-examination, being asked to explain how he came to be upon the top of the elevator he replied, “with the advancement of my foot my body went outside of the elevator, and I was forced back by the blow on the lower portion of my body as if some "one had struck me and knocked my feet in the air, and my body fell on top of the elevator;” and when asked to explain how he could remain in position on- top of the elevator while it descended towards the lower floor and then returned, as' described in his examination in chief he replied, “I remained' ⁵²⁸ there because of the protection I got when the .elevator passed down through^ the shaft; it held me there, but as soon as I came up out of the shaft to the open door I was released. The shaft was holding my body, and as soon as we came up my body yielded to the open door, and that’s the time I left the elevator and it went on up.” * * * “When I was struck by the elevator going down I was just simply rolled over on its top; and my body was just twirled as if some one with great power had seized me and thrown me right over.” Mr. Tattersall testified that a short time after the plaintiff left the lunch room with Gov.

Warfield they heard a cry in the hall, “My God, do not kill me,” and recognizing the voice as Mr. Bryan’s, the party rushed out and found him on the floor of the hall, the door to the elevator shaft open, and the elevator not in sight. Mr. John J. Hurst testified to the same effect, and in addition that in just a mere interim of time after the cry he heard a fall as if a body had dropped. Dr. Chambers tertified at. length to the severity and permanence of the injuries received. John A. Klinefelter who was in charge of that elevator at the time of this occurrence testified for the defendant that he was then over 20 years of age, and had been in charge of an elevator before going to the Belvedere Hotel, at the Equitable Building.

He said that the plaintiff after going to the outer door with Gov. Warfield came back and entered his elevator but did not say where he wished to get off. “I went up as far as the second floor and asked him if he wanted to get off there, and he looked at me and kind of nodded his head, so1 when I got to the second floor, he kind of reached out his hand to touch the door, and I said to him, Take your hand off that door, I am supposed to open the door. So I got up very near,, about six inches from the second floor and he reached out again, and I had the handle of the door when he got hold of my hand, when finally the catch opened and he pushed my hand away, and the door flew open and he stepped out. He stepped out with his right foot before I had the ele ⁵²⁹ vator stopped¿ He started to get out before the elevator stopped and he was squeezed between the elevator and the wall; the elevator did not fall at all; while he was getting out I did not move the lever at all to make the elevator descend.

The elevator was still moving slowly up. I closed the door and went down to the office floor and sent two bell boys for a doctor. * * * Mr. Bryan was not thrown upon the top of the elevator * * * I am positive I closed the elevator door when I went down to the office floor to call the doctor, and when I returned to the second floor Mr. Bryan was lying on the floor * * * no one was near him at that time. * * * I do not know how he was struck. I was as scared as he was.” The witness was asked if he did not call at Mr. Bryan’s residence during June or July, 1904, and state to Mrs. Bryan that he wished to see Mr.' Bryan, and if Mrs. Bryan did not tell him he could not see Mr. Bryan. To which he answered he did not call there and had never seen Mrs. Bryan.

Mrs. Bryan in rebuttal said he did call at her residence in June, 1904, asking to see Mr. Bryan, and that she sent him to Mr. Bryan’s office to see his partner, Mr. Tolson. He was also asked if he did not about the same time, June or July, 1904, at Mr. Bryan’s residence, tell him that he never touched the door of the elevator or made any attempt to get off until the elevator was stopped, and that when the elevator moved he, Klinefelter lost his head, and did not know what he did do; and also if Mr. Bryan did not then tell him he did not want any statement from him about the accident, but if he wished to make one, to see Mr. Tolson at 406 St. Paul street, all of which he positively denied. Mr. Bryan in rebuttal testified that Klinefelter did call on him at his residence in the latter part of June, 1904, gave him his name as Klinefelter, and said he called to say to him that he was not in fault, that he Klinefelter, lost his head, and that the statement he made to the newspapers was not correct. He was also asked if he did not call at the office of Bryan & Tolson in June or July, 1904, and tell Mr. Tolson that he ⁵³⁰ had signed a statement in December, 1903, to the effect that Mr. Bryan had opened the elevator door himself, and that it was his fault he was injured, but that this statement was not true and he had signed it because he was afraid Mr. McCahan would discharge him, also if he did not at that same time say to Mr. Tolson that when Mr. Bryan was hurt and fell on top of the elevator, that he thought a hat which fell down the elevator shaft was Mr. Bryan’s head and that he was so excited he moved the elevator after it went down, and sent it up and that Mr. Bryan rolled off the top of the elevator at the second floor, and he went on up the shaft with the elevator, also if he did not at the same time and place state that the Hotel Company had trouble with this'same elevator before the accident while putting furniture in the hotel — also that the Hotel Company had discharged him and he was going to Pittsburg, and that he had called on Mr. Bryan and told him he had not been at fault, all of which he positively denied, stating he had never seen Mr. Tolson anywhere.

Mr. Tolson in rebuttal testified that Klinefelter did at the time and place named make each of the statements above set forth. Emil Schuman testified for defendant, that he had charge of the private dining rooms on the second floor the evening of the accident, and started to go down for some cigars and went to the elevator the door of which was closed and gave the signal, but it was sometime before it came up ; that he turned towards Eager street, and all at once the door opened and he found Mr. Bryan on the floor; that he looked at the elevator and saw it was between three and four inches from the second floor; that Mr. Bryan’s cries brought people from the party and Mr. Bryan was carried to a room in the rear. John J. Hunt testified for defendant that he was the engineer in charge of the machinery of the Hotel Belvedere and was on duty the night of this accident; that he had twenty-five years experience as an engineer, and understood the operation of a plunger elevator such as that was ; that he observed the movement of that elevator that night, and saw nothing strange or unusual; that if there had been a sudden ⁵³¹ fall of the elevator by reason of the reversal of the valve, he would at once have seen and stopped it; that he was there to watch the operation of the machinery; that the machinery, appliances and equipment of this elevator, and the motive power were all sound and first class in every particular, that it had run smoothly before and ever since the accident, and had never given a moment's trouble. This is the substance and the sum of all the testimony in the case.

The uncontradicted evidence of Mr. Hunt, the defendant’s 1 engineer, is that that elevator with its'motive power, equipment, and appliances were all sound and first class in every particular ; that he was on duty at the time of the accident, and that he observed nothing irregular or unusual in its operation on that evening. Proof of the alleged statement of Klinefelter to Mr. Tolson that this elevator had given trouble before the accident, and that while carrying furniture in it before the hotel was opened to the public,.furniture had been caught in it, though denied by him, was admissible to contradict and discredit him, but not for the purpose of proving the fact that the elevator was not properly constructed, equipped or main-, tained,' and we are therefore of opinion that there was no legally sufficient evidence tending to prove negligence of the defendant in failing to provide the elevator with proper ma- • chinery and appliances as alleged in the first count of the declaration. But it must be at once apparent we think from the summary of the testimony we have given, that the Court would not have been warranted in withdrawing the case from the jury upon the testimony relating to the