Seberg v. Mortimer Fleishhacker

This is an appeal by the defendant, Van Emon Elevator Company, from the judgment, and from an order denying its motion for a new trial. *Page 237

The action was begun by the widow and minor child of Angelo R. Seberg, deceased, to recover damages caused to the plaintiffs from the death of said Angelo R. Seberg by the alleged negligence of the defendants. The action was dismissed as to all the defendants except the Van Emon Elevator Company. The jury returned a verdict against said company for five thousand dollars damages. The defendant Fleishhacker, as owner, had contracted for the erection of a building in San Francisco. The different portions of the building were let to different contractors. McLeran Peterson were the general contractors for the erection of the building. They were to furnish and install all the carpenter work, roofing, glazing, tiling, marble work and ornamental ironwork, in the building, and particularly all carpenter work, ironwork, woodwork and glazing inclosing the elevator shaft, including the sliding-doors therein giving access to the elevator from the several floors of the building. The Van Emon Elevator Company contracted to furnish and install the elevators only. At the time of the accident, which caused the death of the decedent, this elevator had been installed and was running, but the work on it was not fully completed. It was operated by and was in control of the elevator company. The iron grill and woodwork inclosing the elevator shaft, including the doors, were completed, with the exception of placing the glass in the upper part of the doors. An aperture was left in the doors at a height of three and a half feet, in which the glass was to be inserted. The Monarch Iron Works, as subcontractor of McLeran Peterson, were putting in the iron and brass work, including the brass plates called kick-plates, to be placed across the lower part of the front doors of the building, and also the ironwork inclosing the elevator shaft. Seberg was in the employ of the Monarch Iron Works as a draftsman. A part of his duties was to estimate the work on the Fleishhacker job, and to inspect the work placed in the building by his employers. On the day of the accident he was sent to the building to measure the places for the kick-plates, all of which were on the ground floor. For some reason he went to the second floor of the building, put his head through the aperture left in the door opening into the elevator shaft, whereupon his head was struck by the descending elevator, causing his death.

The appellant contends that the evidence shows that the deceased was guilty of contributory negligence in putting his *Page 238 head through the opening in the door. We think this defense was established. The act of putting one's head into an elevator shaft, without taking reasonable precautions to ascertain whether or not the elevator is in operation, or in dangerous proximity, is clearly a careless act. The opening in the door was twenty-two inches wide and three feet long from top to bottom. One could easily look through this opening, and, without protruding his head into the shaft, could ascertain whether or not the elevator was near by in either direction. If Seberg had done so and had perceived the elevator coming, or in close proximity, it would have been careless and imprudent for him to put his head through the opening into the shaft. If he put his head through without looking he was careless. In either case, therefore, he would be chargeable with negligence. He had been sent there to take the measurement of the space for the kick-plates. It was also a part of his duty to inspect the work done by his employers on the building, including the grill work inclosing the elevator shaft, but he had not been sent there for that purpose. It is to be presumed, unless the contrary appears, that he was in the ordinary use of his faculties. There is not the slightest indication in the evidence to the contrary. No explanation is given to account for his conduct. The only reasonable conclusion is that his doing so was a thoughtless and imprudent act not coming within the definition of ordinary care. This act of his contributed directly to the injury which caused his death.