Opinion
January 8, 1908.
Herbert C. Stratton, for the appellant.
F.T. Miller and Wordsworth B. Matterson, for the respondent.
We think this judgment cannot be sustained for the simple reason that at the time the decedent was killed he was not exercising due care and diligence. On the contrary, the evidence clearly shows that in violation of repeated instructions to him, he jumped on the elevator while it was in motion and gave no signal for it to stop, which he could readily have done after getting on it, and thus by his own want of care the accident was caused. He was fully informed as to the manner of giving the signals by means of the cord attached to the bell, and for an hour before the accident he alone had given them.
There was no evidence in the case tending to show that it was necessary for the decedent in performing his work to get on the elevator while it was in motion. The jury were instructed by the court that if they found that he was instructed not to get on the elevator while it was in motion, and he violated that instruction, there could be no recovery and their verdict must be for the defendant.
The court was evidently of the impression that on this branch of the case there was a question for the jury, but we fail to find any conflict in the evidence. Several disinterested witnesses testify that Tootell was instructed to keep off the elevator while it was in motion and there was also a notice posted to all the employees to that effect, and there was no evidence to the contrary. It is manifest that if these instructions had been followed and Tootell had waited for the elevator to stop before getting on it to remove the barrow of brick, he would not have been injured. Upon the evidence he was guilty of contributory negligence as a matter of law and the complaint should have been dismissed.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, KELLOGG, J., in memorandum; SEWELL, J., not sitting.
The injury to plaintiff's intestate was caused by two negligent acts: First. The engineer failed to notice the mark on the rope which indicated that the elevator was at the fifth floor and which was a signal to him to slow down the engine so that when the mark on the rope for the sixth floor arrived he could shut off the power. He failed to see the first mark, but upon seeing the second slowed down instead of stopping the engine, thinking that he had arrived only at the fifth floor. He was a coemployee of the intestate and was negligent in his duty as such. He was not negligent in performing any duty of superintendence.
Second. Plaintiff's intestate failed to ring the bell which was the signal to notify the engineer that the elevator had arrived at the sixth floor. That duty rested upon him and he had been performing it for sometime previous. No other person present was charged with that duty. The falling of the elevator, therefore, resulted primarily from his negligence. The defendant has not been shown negligent and the plaintiff's intestate was not shown free from contributory negligence.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.