1. Under the allegations of the petition, neither defendant was under the duty to anticipate that the plaintiff would use an elevator as he did, climbing onto and partly over a gate which had been erected for the obvious purpose of keeping persons out of the elevator shaft, where they might fall or be struck by the elevator car which could be moved when the gate was lowered and closed.
(a) It appeared that the plaintiff placed himself in a position of peril by his own acts, and that the defendant company could not reasonably have foreseen that its alleged acts of negligence would concur with those of the plaintiff so as to injure him, it not being alleged that the defendant company had knowledge of his alleged position on the gate to the elevator shaft when the elevator control cable was pulled.
(b) The petition further shows that the plaintiff was merely a volunteer, insofar as the individual defendant was concerned, to whom this defendant owed only the duty of not wilfully injuring him or of using care not to injure him after notice of his peril; but the petition fails to show that the plaintiff was wilfully or wantonly injured or that the individual defendant knew of the plaintiff's position of peril.
2. The petition failed to set out a cause of action against either defendant, and the court did not err in sustaining the demurrers and in dismissing the petition as to both of the defendants.
William P. Hornsby Jr. brought suit for $100,000 damages against Haverty Furniture Company and G. P. Donnellan, and in his amended petition alleged substantially the following: Haverty Furniture Company conducts a furniture business in Atlanta, at the corner of Edgewood and Pryor Streets, and maintains a building there. Donnellan is engaged in the business of remodeling buildings, and was engaged in such work for the Haverty Company on or about July 12, 1950. On that date the plaintiff was employed as a painter by a painting contractor, H. M. Purdy Contracting Company, and was on the Haverty premises working for said Purdy Company. The Haverty store building has several entrances, one of which is an elevator entrance, used for the movement of freight, on the Pryor Street side of said building. The elevator is old-styled, operated manually by pulling a cable to move the elevator up or down, and has no doors or gates of any kind on the elevator car, no signal system, or any regular operator. Said elevator serves five floors in the building, with access to the elevator on each floor, and with two openings in the shaft on the street level. The freight elevator contained no instructions for its use, nor were any such instructions posted about the doors to the shaft. The elevator car consists of a wooden platform seven feet square and about ten feet high, entirely open on two opposite sides. The cable operating the elevator passes inside the elevator car, through a metal slot which has attached thereto a metal lever. This lever, by pressing against the cable, will hold the elevator at the various floors of the building, in connection with certain metal clamps fastened to the cable at intervals corresponding to the floors of the building. There are no emergency controls on the elevator, and the only means of stopping it is by holding the cable. There is a steel angle iron which runs from one side to the other across the top of the open entrance to the elevator car as a part of the frame. On each floor level in the building, there is an opening in the shaft the width and height of the elevator, and the only safeguards across such openings are gates, consisting of metal frames five feet high, across which wooden slats are fastened. These gates move up and down to permit entrance to the elevator, and are made so as to open and close only when the elevator car is stopped on the same floor as the gate, except that the gate on the street level may be opened regardless of the position of the elevator. The only prescribed and safe way to operate the elevator is to manipulate the cable, pulling the same from inside the elevator, and not from outside the elevator, or from a floor above or below the position of the elevator car. On July 12, 1950, the Haverty Company had on duty its usual employees, including one named Jones; and on that date, the defendant Donnellan also had his usual employees, including one Robert Shy, on duty at the building. On that date, the freight elevator was in use and available to all parties. At about 9:15 a.m. on said date, the plaintiff used the elevator in the usual way to take paints to the second floor from the street level pursuant to his employer's instructions to do certain painting work. Robert Shy, Donnellan's employee, called to the plaintiff to release the freight elevator, meaning to close the gate to the elevator shaft on the second floor, so that the elevator car could be used to take a load of lumber from the street floor to the fourth floor for Donnellan's use. The plaintiff closed the gate to the elevator opening on the second floor, and Robert Shy asked and directed the plaintiff to move the lever on the metal slot in the elevator car in order to move the elevator to the floor below. The plaintiff then tried to open the gate on the second floor to move the lever which held the elevator on the second floor, but was unable to do so, and he had to stand in part over the gate and reach over to move the lever, when suddenly, without warning or notice, the elevator cable was pulled by either the employees of the Haverty Company on another floor or by the employees of Donnellan. Before the plaintiff could remove his head and body from over the gate, the elevator descended enough to trap his head between the top of the gate and the angle iron on top of said elevator, thereby
causing his body to be caught and thrust into the elevator. The plaintiff did not touch or move the cable to said elevator and did nothing to move the elevator, which moved without action on the plaintiff's part. It was alleged that the combined acts of the defendants were the proximate cause of the plaintiff's injuries, which were set out. The plaintiff was not prohibited from using the elevator, nor was he ever given instructions on its use or advised of the defective gate on the second floor. The defendant Haverty Furniture Company, knew or should have known by ordinary diligence that various persons were using the elevator, including the parties above mentioned, but did nothing to restrict or supervise the use of the elevator. Section 49-118, City Code of Atlanta, 1942, as amended, provides as follows: "The owner or his duly appointed agent shall be responsible for the safe operation and proper maintenance of elevators . . . after the installation has been approved by the Superintendent of Electrical Affairs." This is a valid city ordinance, and was in effect at the time of the plaintiff's injury.
The defendants were alleged to be jointly and severally liable to the plaintiff by reason of the following specific acts of negligence which caused the plaintiff's injuries: (a) The Haverty Company owned, controlled, and maintained a freight elevator without any proper signs or warnings as to its use for persons likely to use said elevator. (b) The Haverty Company permitted said elevator to be operated at will by any of its employees or persons having access to it without having an operator or person in charge thereof. (c) The Haverty Company maintained said elevator without any doors or gates save the gates on the respective floors. (d) The Haverty Company maintained said elevator without any system of signals to control its use in a safe manner, and instead permitted it to be operated from any floor in the building by anyone who might pull the cable, irrespective of the position of the elevator. (e) The Haverty Company maintained a defective gate to the shaft opening to the elevator on the second floor--which made it difficult and sometimes impossible to open--which condition was known or should have been known to this defendant by reasonable control over the same. (f) The Haverty Company permitted its employees and other persons to move the elevator from the various floors without warning to the persons then using the elevator and without. operating the same in the customary manner, from within only, but instead permitted its unsafe operation from outside the elevator and without any person being on or in the elevator. (g) The Haverty Company permitted its employees and other persons to move the elevator by pulling the cable from outside the shaft, without lifting the gate, and permitted its employees and others to reach into said shaft and pull the cable when they were unable to see whether or not any persons were on the elevator at the moment. (h) The Haverty Company did not properly supervise the use of said elevator but left the same to the uncontrolled use of any person having access thereto. (i) The Haverty Company maintained and operated said elevator without any reasonable safety control to stop the elevator in emergencies. (j) The defendants' employees pulled the cable to said elevator without warning or notice, while the plaintiff was seeking to move the lever holding the elevator on the second floor for the benefit of the defendant Donnellan, and because of the failure of the gate on said floor to rise, was forced to lean over said gate. (k) The Haverty Company by the exercise of ordinary care should have noticed that the elevator was being used by employees on the street floor, and that the plaintiff was assisting in the use of the elevator. (l) Donnellan, with the other defendant, placed the plaintiff in danger by causing him to assist his employees in the furtherance of their master's business by seeking to move the lever on the elevator, when said defendant knew that over the past several months other persons and employees of the other defendant had used the elevator by pulling the same away without warning or notice. (m) The combined acts of the defendants--Donnellan's in placing the plaintiff in a position of danger, and Haverty Company's or Donnellan's in using the elevator without warning or signal to the plaintiff--were the proximate cause of the injuries sustained by the plaintiff.
The defendants filed general demurrers to the petition. The demurrers were sustained, and the petition was dismissed as to both defendants. The plaintiff excepted to this judgment.
1. It is alleged in the petition that the Haverty Furniture Company owned and occupied a building in which the elevator that injured the plaintiff was located; and that the plaintiff was there at the time as an employee of a painting contractor, who was doing work in the company's building. Assuming that these allegations are sufficient to show that the plaintiff was in the building as an invitee of the Haverty Company, so as to require it to anticipate his presence and to exercise ordinary care to prevent injury to him, it cannot be said that the invitation extended to, or that it was the defendant's duty to anticipate, the use of the elevator by the plaintiff in the manner alleged. According to the petition, the plaintiff was carrying paint to his work on the second floor. He entered the elevator on the street floor of the building and operated it himself up to the second floor of the building. It is not shown whether or not the plaintiff locked the hand-control cable by means of the lever before leaving the car. He then raised the gate and stepped out with his paints. The gate to the shaft on the second floor was alleged to be about five feet high and one which had to be lowered and closed before the elevator could be moved, and which automatically locked when the elevator had moved away. When the employee of the defendant Donnellan, who was doing remodeling work in the building, called to the plaintiff to release the elevator so that he could use it, the plaintiff lowered and closed the gate. Donnellan's employee then "asked and directed" that the plaintiff also release the lever which locked the control cable in place within the elevator. The plaintiff attempted to raise the gate, so that he could release the lever, but was unable to lift it. He then stood "in part over the said gate" and reached over it to move the lever which held the control cable. The plaintiff either released the locking lever, or else he had not locked it, for it is alleged that the control cable was pulled without warning by some employee of one of the defendants, at another floor, and that the elevator descended before the plaintiff could remove his body and head from over the gate, thereby injuring him.
Under these alleged facts, the following principle, expressed in the case of Culbreath v. Kutz Co., 37 Ga. App. 425 (1) (140 S. E. 419), is controlling: "Where an instrumentality is being put to a purpose or use not intended, the owner or person in control thereof is not liable for injuries occasioned thereby, unless he had actual knowledge that it was defective and unsuited for that purpose and also knew or should have anticipated that it would be diverted to the foreign use." There the plaintiff, while washing the windows of the defendant's building, attempted to support himself by a defective window frame. "In that case [ Culbreath v. Kutz Co., supra] the use to which the instrumentality was being put was so foreign to its purpose, and the circumstances which affirmatively appeared from the plaintiff's petition were such that the court was justified in holding as a matter of law that the defendant was under no duty to have anticipated such use." Georgia Power Co. v. Leonard, 187 Ga. 608, 612 (1 S. E. 2d, 579). Also see Balch v. Carling, 102 Ga. 586 (29 S. E. 146); Knowles v. Central of Ga. Ry. Co., 118 Ga. 795 (45 S. E. 605); Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030 (48 S. E. 438); Hudgins v. Georgia Power Co., 43 Ga. App. 627, 629 (159 S. E. 723); McDade v. West, 80 Ga. App. 481, 488 (56 S. E. 2d, 299). In the present case, neither defendant was under a duty to anticipate that the plaintiff would use the elevator as he did, climbing onto and partly over the gate which had been placed there for the obvious purpose of keeping persons out of the shaft, where they might fall or be struck by the elevator car which could be moved when the gate was lowered and closed.
In other words, the petition shows that the plaintiff placed himself in peril by his own acts, and that the defendant company could not reasonably have foreseen that its acts would concur with those of the plaintiff so as to injure him.
2. The petition alleged that the defendant Donnellan, acting through his employees, was negligent in placing the plaintiff in a position of danger by requesting him to release the elevator and then moving the elevator by pulling the control cable. The petition shows that the plaintiff was merely a volunteer, insofar as Donnellan was concerned, to whom this defendant owed only the duty of not wilfully injuring him or of using care not to injure him after notice of his peril. Atlanta & West Point P. Co. v. West, 121 Ga. 641
(49 S. E. 711, 67 L. R. A. 701, 104 Am. St. R. 179); Central of Ga. Ry. Co. v. Mullins, 7 Ga. App. 381
(66 S. E. 1028); Southern Ry. Co. v. Duke, 16 Ga. App. 673
(85 S. E. 974); Early v. Houser & Houser, 28 Ga. App. 24
(109 S. E. 914); Callaham v. Carlson, 85 Ga. App. 4
(67 S. E. 2d, 726). (The case last cited is similar to the present case in the manner in which the injury occurred.) It is not alleged here that the plaintiff was wilfully or wantonly injured, or that the defendant Donnellan had any notice of the plaintiff's perilous position on the gate to the shaft when the elevator control cable was pulled; but it is shown that persons outside the shaft were unable to see whether or not anyone was on the elevator when the car was at another floor. Donnellan was not an employer of the plaintiff, nor did, he maintain and control the elevator, but he was merely another invitee on the premises of the defendant company. He was under no more duty to anticipate that the plaintiff would go upon and partly over the gate than was the defendant company, as indicated in the first division of this opinion.
3. The petition affirmatively shows than the defendants breached no duty with respect to the plaintiff, who had placed himself in a position of danger unknown to, and not reasonably to be anticipated by, the defendants. The trial judge did not err in sustaining the defendants' demurrers and in dismissing the petition as to both of the defendants.