Opinion — Munsey v. Webb

150 OCTOBER TERM, 1913.

Argument for Plaintiff in Error. 231 U.S.

MUNSEY v. WEBB, ADMINISTRATOR OF

PENNINGTON.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

No. 40. Argued November 4, 5, 1913.—Decided November 17, 1913.

Where the possibility of their occurrence is clear to the ordinarily pru-

dent eye, one operating an elevator must guard against accidents

even though they may occur in an unexpected manner. Washing-

ton & Georgetown R. R. Co. v. Hickey, 166 U.S. 521.

Where the jury may properly find that negligence to guard against a

possible, although unusual, accident in an elevator was the proximate

cause of the injury, the appellate court will not reverse because the

negligence was merely a passive omission.

Where there is a special source of danger in operating an elevator this

court will not say, against the finding of a jury, that such danger

need not be constantly guarded against.

37 App. D. C. 185, affirmed.

THE facts, which involve questions of negligence in

operating an elevator and questions of proximate cause of

an injury sustained by a passenger therein, are stated in

the opinion.

Mr. Charles A. Douglas and Mr. John W. Price, with

whom Mr. Hugh H. Obear, Mr. Wilton J. Lambert, Mr. C.

K. Mount, Mr. J. Norment Powell, Mr. H. H. Shelton and

Mr. Thos. Ruffin were on the brief, for plaintiff in error:

The law looks to the proximate and not to the remote

cause. Defendant is not liable in this case, because the

negligence complained of was merely the means and not

the proximate cause of the injury. The proximate cause

being the unknown thing which caused deceased to fall

and which, being absolutely unknown, cannot be imputed

to defendant. Also the accident which happened to the

deceased when apparently he was in an entirely normal

MUNSEY +. WEBB. 151

231 U.S. Argument for Plaintiff in Error.

condition, alone in the car, except for the operator, and

without apparent reason, but absolutely without any

fault on the part of the defendant and consequent in-

jury—was not the natural and probable consequence of

the acts of negligence complained of and could not rea-

sonably have been anticipated by the defendant as likely

to occur by reason of such negligence.

Where there is an intervening efficient cause, such in-

tervening cause is the proximate cause of the injury, and

responsible.

Where an act could not have been foreseen, nor antici-

pated, as the result of an act of negligence it is not action-

able.

In this case the fall of the plaintiff's intestate, for which

defendant was not responsible, was the intervening efficient

cause.

The fall and injury of deceased without apparent cause

could not have been foreseen nor reasonably anticipated.

Milwaukee &e. R. R. Co. y. Kellogg, 94 U.S. 469; Ins. Co.

v. Tweed, 7 Wall. 44, 52; Ins. Co. y. Transportation Co.,

12 Wall. 194, 199; Sheffer v. Railroad Co., 105 U.S. 249;

Atchison, T. & S. F. R. Co. y. Calhoun, 213 U.S. 1:1

Cooley on Torts, 3d ed., 99; Wharton on Negligence, 134;

Cole v. German Savings Society, 124 Fed. Rep. 113; Zopfi v.

Postal Tel. Co., 60 Fed. Rep. 987; Teis v. Smuggler Min ing

Co., 158 Fed. Rep. 260; Em pire State Cattle Co. v. Atchison,

135 Fed. Rep. 135; Butts y. Railway Co., 110 Fed. Rep.

329; Chicago &e. Ry. Co. vy. Elliott, 55 Fed. Rep. 949;

Goodlander v. Standard Oil Co., 63 Fed. Rep. 400; Am.

Bridge Co. v. Seeds, 144 Fed. Rep. 609; Little Rock &e.

R. R. Co. v. Barry, 84 Fed. Rep. 930; St. Louis &e. Ry.

Co. v. Bennett, 69 Fed. Rep. 528.

Among the state court cases sustaining the position of

plaintiff in error are Cleghorn vy. Thompson (Kan.), 54

L. R. A. 402; Stone v. Boston & A. R. R. Co. (Mass.),

51 N. E. Rep. 1; Huber v. La Crosse Ry. Co. (Wis.), 31

call

RPT a RRB ene Shae.

azahis,

We

152 OCTOBER TERM, 1913.

Argument for Plaintiff in Error. 231 U.S.

L. R. A. 583; Herr v. City of Lebanon, 149 Pa. St. 222;

Loftus vy. Dehail, 133 California, 214; Hoge v. Lake Shore

&e. R. R. Co., 85 Pa. St. 293; Board of Trade y. Cralle

(Va.), 22 L. R. A. (N. 8S.) 297; Mahany Township v. Wat-

son, 116 Pa. St. 344; Texas Pac. Ry. Co. vy. Beckworth

(Texas), 32 S. W. Rep. 347; Schaeffer v. Jackson (Pa.),

24 Atl. Rep. 629; Galveston &c. R. R. Co. v. Chambers,

73 Texas, 296; Nelson v. Lighting Co. (R. I.), 67 L. R. A.

116; Railroad Company v. Trich, 117 Pa. St. 390; Atchison

&e. R. R. Co. v. Dickens, 103 S. W. Rep. 750; McClain v.

Garden Grove, 83 Towa, 254; Hunter v. Wanamaker (Pa.),

2 Cent. Rep. 70; Hershey v. Mill Creek: Township (Pa.),

8 Cent. Rep. 252; McGahan v. Indianapolis Gas Co.,

37 N. E. Rep. 601; Russe v. Morris Bldg. Assn., 104

Louisiana, 438; O’Connor vy. Brucker (Ga.), 43 S. E.

Rep. 731; Beall v. Athens, 81 Michigan, 536; Lewis v.

Flint & P. M. Ry. Co. (Mich.), 19 N. W. Rep. 744; Clay-

pool vy. Wigmore (Mass.), 71 N. FE. Rep. 509; Mo. Pac. R.

Co. v. Columbia (Kan.), 58 L. R. A. 399.

To the same effect are: Reeves vy. Wallace, 10 Wall.

176; Morrison vy. Davis, 20 Pa. St. 293; Cuff v. N. & M.

Y. R. Co., 35 N. J. L. 18; Smith v. Kanawha County (West

Va.), 8 L. R. A. 82; Moulton v. Sanford, 52 Maine, 127;

Brown v. Wabash, 20 Mo. App. 222; Cornell v. Ches. & O.

Ry. Co. (Va.), 24 8. E. Rep. 467; Fowlks v. Southern Ry.

Co. (Va.), 32 8. E. Rep. 464; Winfree v. Jones (Va.), 51

S. E. Rep. 153; S. C., 1 L. R. A. (N. S.), 201.

In order to recover plaintiff must show some negligent

act on the part of the defendant and, also, that the acci-

dent and injury complained of were not only the natural

and probable consequence of such act claimed to be negli-

gent, but, also, that the accident and injury were, in fact,

oceasioned by such act, and, in addition, that the accident

and injury so suffered should have been foreseen and an-

ticipated, and therefore guarded against, by a man of or-

dinary care and prudence.

ee

MUNSEY ». WEBB. 153

231 U.S. Argument for Plaintiff in Error.

This plaintiff has failed to do. McGrell v. Buffalo Bldg.

Co., 153 N. Y. 265; Dougan vy. Champlain Transp. Co.,

O60 N.Y. 1; Cleveland vy. N. J. Steamboat Co., 68 N.Y. 306:

Loftus v. Ferry Co., 84 NX. Y. 4155; Lafllin v. Buffalo &

S. W. R.Co., 106 N. Y. 136; Frobisher v. Fifth Ave. Trans.

Co., 151 N.Y. 431.

Whether defendant could reasonably have anticipated

the happening of the accident must. be measured by the

circumstances before the accident, not afierwards. Am.

Exp. Co. v. Smith, 33 Oh. St. 51 1; Libby v. Maine Cent.

R. R. Co. (Me.), 20 L. R. A. S12; Cornman v. Eastern

Counties R. R. Co., 4 Murlst. & N. 7SL; American Assn,

v. Talbot, 141 Missouri, 674: Nash. & Chatt. R. R. Co. v.

Davis, 6 Heisk. 261; Cooley on Torts, 15; MeGrell y.

Buffalo Co., 153 N.Y. 265: Empire State Cattle Co. y.

Atchison, 135 Fed. Rep. 135; Smith v. Western Ry. Co.,

91 Alabama, 455.

The cases relied on by defendant in error, such as

Patton vy. Southern Ry. Co., 82 Fed. Rep. 980; Hayes y.

Michigan Central, 111 U.S. 228; McDowell v. Toledo Ry.

Co., 74 Fed. Rep. 104: Choctaw Ry. v. Holloway, 191 UL.

334, are not in conflict with the doctrine of anticipation,

and are not applicable to this ease. While the question,

What is the proximate cause? is ordinarily for the jury,

where the whole evidence offers no substantial dispute

on material points, and is of such conclusive character

that the court in an exercise of sound judicial discretion

would be compelled to set a verdict aside returned in

opposition to it, it is not only the province but the duty

of the court to direct a verdict. Guenther y. Met. RLR. Co.,

23 App. D. C. 493; Teis v. Smuggler Mining Co., 158

Fed. Rep. 260.

In this case there was nothing to be submitted to the

jury for determination. Under the undisputed facts of

the case the court should have directed a verdict for the

defendant. Sheffer v. Railroad Co., 105 U.S. 249; Rail

154 OCTOBER TERM, 1913.

Opinion of the Court. 231 U.S.

road Co. v. Elliott, 55 Fed. Rep. 949; Empire State Cattle

Co. v. Atchison, 135 Fed. Rep. 135; Butts v. Railroad Co.,

110 Fed. Rep. 329; Goodlander y. Standard Oil Co., 63

Fed. Rep. 400; Cole v. German Savings Ass'n, 124 Fed.

Rep. 113; Cleghorn v. Thompson (Kan.), 54 L. R. A. 402;

Stone vy. Boston & Albany (Mass.), 41 L. R. A. 794; Huber

v. LaCrosse Ry. (Wis.), 31 L. R. A. 583; Nelson v. Lighting

Co. (R. I.), 67 L. R. A. 116; Hoag v. Lake Shore Ry.,

85 Pa. St. 293; Railroad Co. v. Trich, 117 Pa. St. 390;

McClain v. Garden Grove, 83 Iowa, 235; McGrell v. Buffalo

Bldg. Co., 153 N. Y. 165.

Under the particular circumstances of the case the car

was stopped in as short a distance as possible, and a jury

could not have found the facts to be otherwise. Even if

any act of omission of defendant relied upon by plaintiff

was negligence, it was not the proximate cause of the

injury.

Mr. Arthur Peter, with whom Mr. Preston B. Ray and

Mr. Julian W. Whiting were on the brief, for defendant

in error.

Mr. Justice Houmss delivered the opinion of the court.

This is an action brought against the owner of a build-

ing for causing the death of the plaintiff's intestate in an

elevator in which the deceased was being carried to his

place of employment. Negligent construction and negli-

gent management of the elevator are alleged. The plain-

tiff had a verdict against a request by the defendant that

one be directed for him, the judgment was affirmed by the

Court of Appeals, 37 App. D. C. 185, and the defendant

brought the case here.

The elevator car did not quite fill the well, or shaft, and

the bottom of the floor that it was approaching projected

at right angles into the well about three and one-half

inches. The car was equipped with a collapsible door,

MUNSEY v. WEBB. 155

231 U.S. Opinion of the Court.

which was open at the time of the accident and the boy

in charge did not have his arm across the space as he had

heen instructed to do. Between the fourth and fifth floors

the deceased fell and his head was caught between the

projecting bottom of the fifth floor and the floor of the

car and was crushed. The negligence relied upon is the

leaving of the door open and failure to guard the space;

the not having a flange or piece of metal inclining from the

projecting floor to the shaft wall, and the failure to use an

emergency switch, the quickest means of stopping the

car, the boy in charge not having been instructed in the

use of it.

The plaintiff in error argued at some length that there

Was no negligence, because the fall of the deceased was

something wholly out of the ordinary course and not to be

foreseen; or that, if there was negligence in any sense, it

was not the proximate cause of the death but merely a

passive condition made harmful by the fall. Neither argu-

ment can be maintained. It is true that it was not to be

anticipated specifically that a man should drop from in-

ternal causes into the open door of the ear. But the pos-

sibility and the danger that in some way one in the car

should get some part of his person outside the ear while

it was in motion was obvious and was shown ‘) have been

anticipated by the door being there. In © cireum-

stances at least it was a danger that ought t: and was

guarded against. It is said that the danger was manifest

only when the car was crowded, and that the door was

needed only for that. If the duty to have the car shut

on all sides had been created with reference only to con-

ditions different in kind from those of the accident it may

be that the plaintiff could not avail himself of a require-

ment imposed alio intuitu. Eugene F. Moran, 212 U. 8.

466, 476. But the accident was simiiar in kind to those

against which the door was provided, and we are not

prepared to say, contrary to the finding of the jury, that

156 OCTOBER TERM, 1913.

Opinion of the Court 231 U.8.

the duty to keep it shut or to guard the space with the arm

did not exist in favor of all travellers in an elevator having

the structure that we have described. It was not neces-

sary that the defendant should have had notice of the

particular method in which an accident would occur, if

the possibility of an accident was clear to the ordinarily

prudent eye. Washington & Georgetown R. R. Co. v.

Hickey, 166 U.S. 521, 526, 527.

If there was negligence it very properly could be found

to have been the proximate cause of the death. See

Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469.

I’ven if it were true that the neglect was merely a passive

omission, the deceased was invited into the elevator and

the principle of the trap cases would apply. Corby v. Hill,

4C. B. (N.S.) 556, 568. Sweeney v. Old Colony & New-

port R. R. Co., 10 Allen, 368, 374. But that is not the case.

The defendant is sued for having crushed the head of the

deceased by forces that he put in motion. He replies that

it would not have happened but for the unforeseen fall of

the deceased without the defendant’s fault, and to this

the plaintiff rejoins and the jury has found that the de-

fendant was bound to take the easy precaution which he

had provided against any and all ways by which a pas-

senger’s body could get outside the car while it was going

up. Hayes v. Michigan Central R. R. Co., 111 U.S. 228,

241. Choctaw, Oklahoma & Gulf R. R. Co. vy. Holloway,

191 U. 8. 334, 339. The whole question comes down to

whether we are prepared to say as matter of law against

the finding of the jury that, in an elevator constructed

as this was with a special source of danger in the shaft

outside the car, to require the defendant to guard the door

space in transitu, at his peril, is too strict a rule. We can-

not go so far. McDonald vy. Toledo Consol. S. Ry. Co.,

74 Fed. Rep. 104, 109.

There was perhaps evidence sufficient to warrant a

finding that there was negligence in not stopping the car

BUCHSER v. BUCHSER. 157

231 U.S. Statement of the Case.

after the fall and before the harm was done, and a finding

on that ground would not open the questions that have

been discussed; but we have preferred to deal with the case

on the matters principally argued, as they seem to offer

the most obvious reasons for the verdict, and therefore

have assumed that the jury found the facts and standard

of conduct to be as we have supposed.

Judgment affirmed.