Globe Indemnity Co. v. Hook

NOURSE, J.

This is an appeal from a judgment in favor of defendants following an order granting their motion for nonsuit. Plaintiff sued as surety in subrogation under the provisions of the “Workmen’s Compensation, Insurance and Safety Act” [Stats. 1917, p. 831], to recover damages for negligence on the part of the defendants resulting in the death of one Eugene P. Nolan. The decedent was an employee of the Pacific Knitting Mills, with which the plaintiff had made a contract of compensation insurance. Plaintiff had paid the award made by the Industrial Accident Commission to the dependents of decedent.

The facts of the ease are: The Pacific Knitting Mills maintained and operated an establishment on the fourth floor of a building situate in the city of Los Angeles and owned by the defendants Hook and leased by the defendant Geo. Rice & Sons. Means of ingress to and egress from the said fourth floor was by way of a passenger elevator and a stairway in the front part of the building and a freight elevator in the rear of the building. The stairway was always open. The passenger elevator in the front of the building was operated

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between the hours of 7 A. M. and 5 o’clock P. M., and the freight elevator was used by employees of the company at their convenience. Decedent and one Stewart on the day of the injury entered the rear of the building at about 5:30 P. M. on a dark night on their way to the fourth floor for the purpose of attending to their duties. They approached the elevator shaft, which was without light of any kind, and Stewart raised the gate which guarded the elevator shaft, stuck his foot into the shaft to feel the elevator and continued on down to the bottom of the well, receiving slight injuries. Decedent, who was by his side, followed him immediately into the well and struck the bottom in such a way as to receive. injuries which resulted in his death. Neither party made any effort to ascertain whether the elevator was at the ground floor other than as just stated. Both were looking back at the time they stepped into the well, and both were thoroughly familiar with the danger which they assumed. Stewart, who was the only eye-witness to what occurred, testified in part as follows: That his automobile was standing in the street directly in front of the freight elevator, and he went to the automobile and turned the dimmers down; that he and decedent reached the elevator at the same time and he reached down and raised the gate of the elevator; that at that time there were no lights in the elevator nor street lights in the vicinity to light up the elevator shaft. “I reached down and pulled the gate up and stuck my foot in to feel if the elevator was there, and just as I did that he [decedent] spoke to me and said, ‘Tour lights are not on.’ . . . And instinctively as he said that, although I knew the lights were on, I turned around to look; and then just a subconscious thought, whatever it was, I had in my mind to step in there, and I stepped in. All I thought was, all the way down, ‘This elevator is a long way below the floor,’ because it never stopped right at the floor. . . . The elevator was above instead of below. . . . We both stepped in together into the shaft.” The same witness testified that they could have entered the front door and walked up the front stairs; that though the elevator in the rear was for freight, it had been used by employees of the knitting-mills as a passenger elevator for about three years prior to the accident; that though the freight elevator was frequently at or near the ground floor,