Brager v. Austin

Briscoe, J., delivered the opinion of the Court. This suit is brought by the plaintiff against the defendant to recover damages for the alleged negligent killing of a minor son, who.was at the time an employee on the premises of the defendant. The declaration contains three counts and they allege in substance that the accident which resulted in death was due to the negligence of the defendant in failing to have and keep in order a door or gate, near the place assigned the plaintiff’s son to work, and kept and maintained for the passage of a freight elevator, used in defendant’s business. The questions in the case are presented upon a single exception and that is to.the refusal of the Court to grant the defendant’s first prayer.

The prayer is as follows, that there is no evidence, in the case, legally sufficient to prove that the accident and injuries to the plaintiff’s son, which resulted in his death, were due to a failure of the defendant to fulfill any ■of the duties which he owed to the plaintiff’s son, as alleged in the declaration, and the verdict must be for the defendant. The plaintiff offered no prayers, but the Court granted the defendant’s second, prayer which submitted the proposition, ⁴⁷⁸ that the plaintiff was not entitled to recover, unless they find from the evidence that the death of the plaintiff’s son was. caused exclusively by the negligence of the defendant, as alleged in the declaration, and without any negligence on the part of the deceased contributing to the accident. The case was submitted at the close of the plaintiff’s evidence and the judgment being for the plaintiff, the defendant has appealed. It becomes necessary,, then, for us to examine the testimony-in the record to ascertain whether there was sufficient evidence to establish the right of the plaintiff to recover.

The defendant was engaged in the business of conducting a department store, at the southeast corner of Eutaw and Saratoga streets in the city of Baltimore, and at the time of the accident the plaintiff’s son, a boy of about twelve years of age, was in his employment. The boy was employed to take waste-paper from the floor of the store and deposit it in a waste-paper box, located in an ante-room to the west side of the elevator shaft and about four (4) feet in front of the elevator door. The elevator ran from the basement of the building through a shaft to the fifth floor, and from the first floor it was enclosed by a wooden frame work, with openings on each floor. The door which closed the opening on the first floor was- about six feet wide and six feet long, and was raised by pulley weights attached to chains.

The elevator was used alone for carrying freight. On the morning of the accident, the boy was at work in the ante-room on the first floor depositing paper in the box, when the elevator ascended from the basement and stopped at the first floor. The elevator boy testified that when he came up from the basement and opened the elevator door the boy and the porter were standing in the ante-room, about two feet from the elevator shaft and the waste-paper box, that the door to the elevator shaft was out of order, and he had to lift it up and put a curtain pole under it to hold it up; “that he put the pole under the left-hand corner of the door, looking out from the elevator, the corner nearest the waste-paper box and that the corner was not ⁴⁷⁹ lighted.” He further testified, that he did not close the elevator door, when the elevator moved to the next floor, but left it for the porter to close; that when the elevator had ascended about five or six feet, he heard some