Morgan v. Saks

143 Ala. 139

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

TYSON, J.

This action was brought to recover damages for personal injuries sustained by plaintiff, on account of the alleged negligence of the defendant in failing to have the door of the elevator shaft barred, by reason of which the plaintiff fell into the same, in attempting to take passage in the elevator operated by defendant for the purpose of carrying his customers to the several floors of his store.

The defendant’s pleas were the general issue and contributory negligence.

. The evidence undisputedly shows that defendant was operating the elevator for the transportation of his customers, and that plaintiff was a customer, and that he was directed by defendant to take the elevator to the second floor, where he could find the articles he desired to purchase.

These facts undisputedly established the relation of carrier and passenger between them. — 10 Am. & Eng. Ency. Law, (2d ed.) p. 946, 950; and imposed on defendant the duty to exercise the highest degree of care in everything pertaining to plaintiff’s safety, and not only while actually aboard the elevator, hut also in entering it. And clearly, leaving the door of the shaft open, which was also shown without dispute, with no bar or other obstruction to prevent the plaintiff from walking into it under the supposition that the elevator ivas there, was negligence for which the defendant is liable, unless the plaintiff was guilty of contributory negligence.— People v. Morgolofski, 32 Am. State Rep. 403; The Colorado Mortgage & Investment Co. v. Rees, 21 Colo. 435; Hopkinson v. Knapp, 92 Iowa 328; Stephens v. Chausse, 15 Canada Sup. Ct. 379; So. B. & L. Association v. Lawson, 97 Tenn. 367. And whether he was guilty of contributory negligence, under the evidence, was a question, for the jury.

It cannot be affirmed as matter of law that, because plaintiff walked rapidly to the door of the shaft and, without stopping to see whether the elevator was in place, stepped into it, supposing he was entering the elevator, he was guilty of negligence. Nor can it be affirmed as a matter of law that, because the place was dimly lighted, he was guilty of negligence.

He had the right to^ assume that the defendant would exercise that degree of care which the law required of him and would not negligently leave the door to the shaft open, and that he may safely enter when he finds the door open, without stopping to make a special examination. Whether the plaintiff, under the circumstances shown by the evidence, exercised that degree of care, which persons of ordinary prudence would exercise on approaching and entering the elevator, was, as we have said, a question of fact for the jury. See cases cited supra; Tousey v. Roberts. 114 N. Y. 312; Dawson v. Sloan, 49 N. Y. Superior Ct. Rep. 304, affirmed, 160 N. Y. 620; note to Michell v. Markee, 25 L. R. A. 35.

. The fact that there was a stairway leading to the second floor by which plaintiff could have ascended is of no moment and can exert no possible influence upon the right of plaintiff to recover.

What we have said will be a sufficient guide upon another trial without reviewing in detail the several charges given at the request of the defendant and those refused to the plaintiff. Suffice it to say, that many of the given charges are not in harmony with the views we have expressed.

Reversed and remanded.

• McClellan, C. J., Simpson and Anderson, J.J., concurring. '