Opinion
30610.
DECIDED NOVEMBER 17, 1944. REHEARING DENIED DECEMBER 12, 1944.
Action for damages; from Fulton superior court — Judge Paul S. Etheridge. May 18, 1944. (Application to Supreme Court for certiorari.)
Blair Carmichael, MacDougald, Troutman Arkwright, Harllee Branch Jr., Dudley Cook, for plaintiff.
Smith, Smith Bloodworth, Croom Partridge, for defendant.
It appearing affirmatively from the allegations of the petition that the deceased, by the exercise of ordinary care, could have avoided the injury complained of, the petition failed to show a right on the part of the plaintiff to recover, and the court did not err in sustaining the demurrer and dismissing the action.
DECIDED NOVEMBER 17, 1944. REHEARING DENIED DECEMBER 12, 1944.
Mrs. Gertrude Sprague brought suit against Atlanta Biltmore Hotel Company to recover damages in the sum of $77,500 for the full value of her husband's life, for the benefit of herself and two minor daughters, age ten months and three and a half years respectively, it being alleged in the petition that her husband's death was caused by the negligence of the defendant company while he was a guest of the hotel.
The petition as amended alleged substantially, that the defendant was engaged in the business of operating a hotel in the City of Atlanta, Georgia, for the purpose of receiving guests and furnishing them with board, lodging, etc., and was subject to the laws and statutes applicable to keepers of hotels and inns, including the legal obligation to protect its guests from negligent injury on its part, its agents, or employees, with reasonably safe ways and means of ingress and egress to and from one floor of the hotel to another; that the defendant was under the legal duty to exercise extraordinary care in the operation of its elevators and elevator facilities so as to protect guests from injury while getting on and off, and while riding in the elevators or when approaching or entering same for the purpose and with the intention of becoming passengers; that her husband, Cyril J. Sprague, at the time of his death was 33 years of age, in good health, with a life expectancy of 32.36 years; that he was employed by Bell Aircraft Corporation and was earning $4,896 per year, and during the first year of his employment his salary would be increased to $6,509, and that further increases were reasonably to be expected in the future; (5) that he was a duly registered guest of the hotel; that at approximately midnight of January 12, 1943, he left the dining room of the hotel where he had been dining and dancing with friends to go to the room which the defendant had assigned to him on the eighth floor of the hotel for the purpose of obtaining his coat and hat and that of a friend who had been dining with him in order that he might accompany this friend to the latter's residence; (7) that the plaintiff's husband and his friend walked to the elevator corridor, which opened immediately off the main lobby of the hotel and there entered an elevator which was standing at said floor level with its door open and with lights burning; said elevator being one of several maintained and operated by the defendant for the transportation of its guests, patrons, and other persons to and from the upper floors of the hotel building, but being the only elevator then available at said floor; (8) that said elevator had been left open by the defendant's agents and employees unattended and with its door open and lights burning and with electric-power switch connected and unlocked, all of which constituted an invitation to the plaintiff's husband and other persons lawfully on the defendant's premises to enter and operate said elevator and made possible the operation of said elevator by anyone entering it; (9) that the plaintiff's husband had previously visited in hotels and apartments in other cities where self-serving elevators were maintained for use by guests and patrons, and being thus familiar with the operation of such elevators, operated the same from the lobby to the eighth floor, where he stopped the elevator and left it standing with door slightly ajar (approximately six inches from the door jamb) so that he and his friend could return in it to the lobby floor after obtaining their coats and hats; that on frequent occasions prior to the injury and death of her husband the elevator in question and other passenger elevators of the same kind in the hotel had been entered and operated to upper floors by persons other than the elevator operators, and that this fact was known to the defendant and its employees at the time the elevator in question was left open, lighted, unattended, and with the power switch connected and unlocked on the night referred to; (10) that the elevator in question was equipped with certain switches, power-circuit breakers, or similar devices, which, if maintained in proper condition and free from defects, would have prevented the operation of the elevator unless the doors of the shaft were all securely closed and fastened, and the plaintiff's husband relied upon this when he left the elevator door slightly ajar as he and his friend left the elevator on the eighth floor, and that he assumed, as he had a right to do under the circumstances, that the elevator was in safe condition and free from defects and that it could not be moved, and that the defendant and its agents or employees would not negligently cause it to be moved so long as the door remained partly open; (11) that the doors to the elevator and elevator shaft, including the door on the eighth floor were equipped with locks, latches, and hinges, which, if maintained in proper condition and free from defects, would have prevented the same from being opened from the outside after being once securely closed from the inside; that the plaintiff's husband relied on this and assumed, as he had a right to do, that if the elevator should be moved from the eighth floor the door would first have to be securely closed for the reasons set forth above and that having been closed from the inside, the door would not remain ajar or be capable of being opened by a slight push from the outside unless the elevator was still standing at the eighth-floor level; (12) that within four or five minutes after leaving the elevator "parked" on the eighth floor with the door slightly ajar, her husband and his friend returned from the husband's room to the elevator corridor and the plaintiff's husband, observing that the elevator door was still ajar, as he had left it and assuming, as he had a right to do, that the elevator had not been moved, he placed his hand upon the door and pushing against it as he moved across the threshold, stepped forward with the intention of again boarding the elevator, but the same had been moved by one of the defendant's agents or employees from the eighth floor without warning or notice to him and without closing the door, and, as a consequence, her husband in the emergency thus created lost his balance and fell down the elevator shaft a distance of eight floors, his body crashed on top of the elevator which was then standing at the lobby floor, and he died before help could reach him; (13) that the door to the elevator shaft and elevator on the eighth floor of the building was constructed of solid material (the exact material being unknown to the plaintiff) through which it was impossible for a person on the outside to see into the elevator shaft; and the narrow opening between the door jamb and the edge of the door in the partially opened position in which it had been left by the plaintiff's husband did not afford sufficient view of the inside of the elevator shaft to enable her husband to detect that the elevator had been moved; that the fact that the door to the elevator shaft was ajar indicated to her husband, under the facts and circumstances herein alleged, that the elevator was still at the eighth-floor level and there was nothing present at the time and place to indicate the contrary; (14) that her husband was in the exercise of ordinary care at the time of the occurrence herein referred to and that under the circumstances hereinbefore alleged he had a right to assume that the elevator could not be moved with the door ajar and that the defendant's agents and employees would not negligently and heedlessly move the elevator without closing and securely fastening the door, and he had a right to rely and did rely upon the maintenance of the door by the defendant in a condition where it could not be opened from the outside at a time when the elevator was at another floor level; (15) the plaintiff alleges negligence in each and all of the following particulars: (a) in leaving the elevator unattended on the lobby floor with door open, lights burning, and electric-power switch connected and unlocked, so as to constitute an invitation to her husband and other guests to enter said elevator and so as to make possible the operation of said elevator by anyone entering it; (b) in subsequently moving said elevator from the eighth floor where it had been left by her husband, and [not] securely fastening the door to the elevator shaft on the eighth floor, and without notice or warning that it had been moved; (c) in leaving the elevator door on the eighth floor open after the elevator was moved, thereby constituting an invitation to her husband to re-enter, and misleading him to believe that the elevator was still there; (d) in maintaining a door to said elevator and elevator shaft on the eighth floor which could be readily opened from the outside; (e) in failing to inspect, repair, and maintain the door to said elevator and elevator shaft on the eighth floor, and the hinges, locks, and latches thereon, so that the same could not be opened from the outside; (f) in maintaining its elevator, elevator shaft, and appurtenant facilities in such condition that the elevator could be moved from the eighth floor, notwithstanding the door at that point was not closed or securely fastened; (g) in failing to inspect the elevator and its facilities so as to discover defects in switches, locks, and operating mechanism which made it possible for the elevator to be operated notwithstanding the door on the eighth floor was not securely shut and fastened; (h) in failing to repair and maintain said elevator and elevator facilities so that the same could not be operated or moved while the door on the eighth floor was ajar; (i) in failing to provide her husband, as a guest, with reasonably safe ways and means of ingress and egress from one floor to another of its premises, and failing to protect her husband as a guest from molestation and injury; (j) in failing to warn her husband that the elevator and door at the eighth floor were defective. Said acts of negligence on the part of the defendant, its agents and employees (together with the violation of the municipal ordinances of the City of Atlanta set forth in a subsequent paragraph hereof) were the direct and proximate cause of the injury and death of the plaintiff's husband and the defendant is, therefore, liable for said death. (16) That at all times herein mentioned there was a valid and subsisting ordinance of the City of Atlanta governing the inspection of elevators and regulating their use and operation, which provided among other things: "Section 3. Electric passenger elevators must have collapsing car gates or car doors equipped with electric contact . . all existing electric-passenger elevators not equipped with hoist way, door locks, and electric contacts shall be equipped with inner locks. . . Section 9. That it shall be the duty of every person. owning, controlling, or operating passenger or freight elevators in the City of Atlanta to expose to public view in the elevator car a certificate of inspection as issued by the superintendent of electrical affairs. . . Section 11. That it shall be unlawful to run or operate an elevator without first having obtained the proper certificate from such superintendent; that anyone guilty of operating an elevator without such certificate will be liable to the penalties imposed under this ordinance. Section 12. That every owner, lessee, or agent shall require the person in charge of the maintenance or operation of the elevator to carefully and regularly examine same; the use of a defective elevator shall be prohibited until the necessary repairs have been made to make it safe. Section 13. That all elevators in regular service shall be inspected annually by an elevator inspector of the department of electricity; where such inspection reveals any elevator unsafe for operation, such elevator shall not be used for service until proper repairs have been made, then a report shall be made to the department of electricity not later than forty-eight hours after starting such repairs. . . Section 17. That the owner or his duly appointed agent shall be responsible for the safe operation and proper maintenance of the elevator . . after the installation has been approved by the superintendent of electric affairs; that the owner shall also make and be responsible for all routine tests which the superintendent of electric affairs may require." That the aforesaid ordinances were of force and effect at the time of the injury and death of her husband; that the same were applicable to the defendant and to the elevator and elevator shaft in question, and that the plaintiff's husband had the right to assume that the defendant and its agents and employees in the maintenance and operation of the elevator and its facilities would not violate the ordinances or other legal obligations and duties set forth; (17) that in addition to the acts of negligence set forth in paragraph 15 the defendant also violated the ordinances and safety regulations set forth above in the preceding paragraph, in that the car gates or car doors of the elevator in question, contrary to section 4 [?], were not equipped with electric contacts or inner locks which were maintained in proper working condition so that for all practical purposes the elevator in question had no electric contact or inner locks in so far as the safety of the plaintiff's husband and other persons lawfully upon the premises were concerned; that said elevator had not been annually inspected as required by section 13, no such inspection having been made since October 15, 1936; that the defendant had not obtained or posted the proper certificate of inspection in said elevator, as required by section 9; that the defendant further failed to fulfill the responsibility placed upon it by section 17 for the safe operation and proper maintenance of said elevator after its original installation had been approved by the superintendent of electrical affairs of the City of Atlanta; that the foregoing violations constituted negligence per se and the same were direct and proximate causes of the injury and death of the plaintiff's husband.
The defendant filed a general demurrer to the petition on the ground that it set forth no cause of action. The court sustained the demurrer and dismissed the petition, and the exception here is to that judgment.
The plaintiff contends that her husband's death was caused by the defendant's negligence as alleged in the petition, and that the court erred in dismissing her action. Briefly, the defendant contends that it appears from the allegations of the petition that the death of the plaintiff's husband was directly caused by his failure to exercise ordinary care for his own safety, and that the general demurrer was properly sustained. The plaintiff's husband was a registered guest of the defendant's hotel at the time of his death and had been assigned a room on the eighth floor of the hotel building. He received injuries which resulted in his death in attempting to use one of the elevators to go from his room on the eighth floor to the lobby floor of the hotel.
It appears from the petition that, about midnight of January 12, 1943, the deceased was on the lobby floor of the hotel and desired to go to his room on the eighth floor to get his coat and hat and the coat and hat of a friend; that he and his friend went to the elevator corridor where he found an elevator, which was unattended, standing at said floor level with its door open, lights burning, with electric-power switch connected and unlocked, and that this was the only elevator available for use on the lobby floor of the hotel at that time; that on frequent occasions before that time the elevator in question and other passenger elevators of the same kind in the hotel had been entered and operated to upper floors by persons other than elevator operators, and that this fact was known to the defendant and its employees at the time the elevator in question was left open, lighted, unattended, and ready for use at the time in question — all of which it is alleged constituted an invitation to the plaintiff's husband and other persons lawfully on the defendant's premises to enter and operate said elevator; that the deceased being familiar with the operation of self-serving elevators, entered and operated it in going to the eighth floor of the hotel where his room was located; that he left the elevator at the eighth floor with the door partly open (approximately six inches), so that it could be used by him in returning to the lobby floor of the hotel; that he went to his room and within four or five minutes after leaving the elevator on the eighth floor with the door slightly ajar, he returned from his room to the elevator and observing that the door was still ajar as he had left it, and assuming, as he had a right to do, that the elevator had not been moved, he placed his hand upon the door, and pushing against it as he moved across the threshold, stepped forward with the intention of again entering the elevator, but the same had been moved by one of the defendant's agents or employees from the eighth floor without warning or notice to him and without closing the door, and, as a consequence, her husband in the emergency thus created lost his balance, and fell down the elevator shaft a distance of eight floors, thereby receiving the injuries that caused his death.
The elevator standing at the lobby floor of the hotel with its door open and lights burning may have been an invitation to the deceased to enter; but it was not an invitation to him to operate the elevator. It is not alleged that guests of the hotel or persons other than elevator operators had, prior to the time in question, operated elevators of the hotel with the knowledge and consent of the hotel company or by its permission. It is alleged that the elevators were maintained and operated by the defendant for the transportation of its guests, patrons, and other persons to and from the upper floors of the hotel building. The allegation that "on frequent occasions prior to the injury and death of her husband the elevator in question and other passenger elevators of the same kind in the hotel had been entered and operated to upper floors by persons other than elevator operators, and that this fact was known to the defendant and its employees at the time the elevator in question was left open, lighted, unattended, and with electric-power switch connected and unlocked," is not sufficient to show an invitation to the deceased as a guest of the hotel to operate the elevator, which was neither an automatic nor a self-service elevator. The deceased without authority, so far as disclosed by the petition, operated the elevator to the eighth floor of the building and left it there with the door partly open, so that he could again operate it back to the lobby floor, and, within four or five minutes thereafter, in attempting to so use the elevator again, he pushed the door open, and, without making any effort to ascertain whether the elevator was present, stepped into the open elevator shaft and to his death. It is alleged that the door to the elevator shaft was of solid material through which it was impossible for a person on the outside to see into the elevator shaft, and that the narrow opening between the door jamb and the edge of the door in the partially open position in which it had been left by the plaintiff's husband did not afford sufficient view of the inside of the elevator shaft to enable him to detect that the elevator had been moved. But it is also alleged that the lights in the elevator were burning when he entered and operated it to the eighth floor, and, nothing to the contrary appearing, it must be taken that the lights were still burning when he left the elevator "parked" on the eighth floor. Lights burning in an elevator compartment would disclose such compartment to a normal person even though vision thereto could be had through an opening only six inches wide. It appears from the petition that the deceased was a young man of travel experience and business ability, that he was in good health and was accustomed to using elevators; and, under the facts alleged, it would be unreasonable to say that acting as an ordinarily prudent person he would not have been able to detect the absence of the elevator compartment when he undertook to re-enter it on the eighth floor for the purpose of operating it back to the lobby floor of the hotel. But assuming that he turned off the lights in the elevator compartment when he left it on the eighth floor and that upon returning he approached a solid door through which he could not see, and the narrow opening which he had left in the door did not afford sufficient view of the shaft for him to detect that the elevator had been moved, was it the act of a prudent person in the exercise of ordinary care to push the door open and step into the dark elevator shaft on the eighth floor of the building without taking any precaution whatever to ascertain whether the elevator was present? Clearly, we think it was not. We think it appears affirmatively from the allegations of the petition that the deceased, by the exercise of ordinary care, could have avoided the injury complained of, and that the petition fails to set out a cause of action. The Code, § 105-603, provides: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." Of course, we are cognizant of the well-settled rule that questions of diligence and negligence, including contributory negligence and proximate cause, are questions peculiarly for the jury, and this court will decline to solve them on demurrer, except in plain and indisputable cases. But where it clearly appears from the petition that the negligence charged against the defendant was not the proximate and effective cause of the injury, the court, upon general demurrer, may, as a matter of law, so determine. It was said in Central of Georgia Ry. Co. v. Larsen, 19 Ga. App. 413, 418 ( 91 S.E. 517): "Ordinarily the question of negligence, both on the part of the plaintiff and the defendant, is an issue to be determined by the jury, but where the plaintiff's petition shows on its face that he has no right to recover, and this question is raised by general demurrer, it is the duty of the court to sustain the demurrer and dismiss the petition." The cases of Peniston v. Newman Hospital, 40 Ga. App. 367 ( 149 S.E. 715), and Macon Savings Bank v. Geoghegan, 48 Ga. App. 1 ( 171 S.E. 853), are quite similar to the present case, and the principles there ruled are applicable to and controlling in this case. In each of those cases there is an allegation that the defendant was negligent in not having the elevator equipped with a mechanical device which would prevent its operation with the door or doors open. The petition in this case goes further and alleges that the violation of several city ordinances, in connection with the alleged acts of ordinary negligence, was the proximate cause of the jury complained of. But in construing the petition on demurrer, the plaintiff is in no better position by reason of the defendant's negligence in violating a city ordinance than she would be by reason of the violation of a common-law duty. The only advantage she would have from the former would be in the method of establishing the negligence by proof. So far as substantive law is concerned the negligence and its consequences are the same in both instances.
The case of Camp v. Curry-Arrington Co., 41 Ga. App. 53 ( 151 S.E. 837), is cited and relied on by the plaintiff in error. It will be seen from an examination of that case that it is distinguishable on its facts from the present case. In the Camp case the plaintiff and one Adams had gone to the defendant's store building to deliver ice. They had the authority and permission of the defendant to use its elevator in delivering ice as the plaintiff was attempting to use it when he was injured, and, in fact, he was expected to be using the elevator at the particular time in question. The employees of the ice company for which the plaintiff and Adams worked had been accustomed for a number of years to use the elevator in delivering ice to the defendant in the basement of its store building. Adams had just gone in the defendant's building and ascertained from some employee of the defendant the quantity of ice wanted and had placed the elevator at the first floor of the building. He informed the plaintiff the elevator was ready, and the plaintiff and Adams proceeded to take the block of ice from their truck to the elevator, and not more than three minutes had elapsed between the time of placing the elevator at the first floor by Adams and the time when the plaintiff, in undertaking to place the ice in the elevator, stepped through the open door into the elevator shaft and fell to the basement. The defendant in this short interval, without notice to Adams or the plaintiff, had moved the elevator to another floor, and had left the door to the elevator shaft open where Adams had just placed the elevator. Under the facts in that case, the court held that it was a question for the jury to determine whether the plaintiff's injury was caused by negligence on the part of the defendant, or whether the injury complained of was due to the failure on the part of the plaintiff to exercise ordinary care.
Without going into detail, an examination of the cases of Morris v. Deraney, 68 Ga. App. 303 ( 22 S.E.2d 860), and Southeastern Elevator Co. v. Phelps, 70 Ga. App. 331 ( 28 S.E.2d 85), will show that these cases are distinguishable on their facts from the case at bar and that they do not authorize or require a different ruling in this case from that herein made.
Under the facts alleged the deceased had no right or authority to operate the defendant's elevator or to use it as he was attempting to do when he received the injury that resulted in his death, and consequently it can not be said that it reasonably appeared to him as a guest of the hotel that an invitation was extended to him to enter and operate the elevator. We have given due consideration to the case of Georgia Power Co. v. Sheats, 58 Ga. App. 730 ( 199 S.E. 582), and the cases therein cited, upon which the plaintiff in error strongly relies, but we are of the opinion that the principles ruled in those cases are not applicable to the facts of the present case.
The petition failed to show a right on the part of the plaintiff to recover, and the court did not err in sustaining the demurrer and dismissing the action.
Judgment affirmed. Parker, J., concurs.
I concur in the opinion and judgment because of the rulings in the cases of Peniston v. Newnan Hospital and Macon Savings Bank v. Geoghegan, cited in the opinion.