Appeal from the District Court of the United States for the Northern District of Indiana, South Bend Division; Thomas W. Slick, Judge.
Before ALSCHULER, SPARKS, and FITZHENRY, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal is from a judgment for Voigt for damages he sustained by falling down a freight elevator shaft in appellant's large two-story and basement store building at Michigan City, Ind. We state the facts with some detail.
The building, recently built by appellant, is a half block long, with an alley at the rear (east), and was wholly occupied by appellant. It was served by an electrically operated freight elevator, which was set in motion by the pressing of electric buttons.
The elevator shaft is located about five feet west from the outside face of the east wall, and has four openings, three on the west side of the shaft, serving respectively the basement, first and second floors of the building, and a fourth opening on the east side of the shaft, about three feet above the level of the alley, at what is termed a loading platform for receiving and discharging merchandise brought to or taken from the building by trucks. The first floor is on the level of the alley. At the level of this platform there is an opening in the east wall of the building about six feet wide and about seven feet high, opposite the opening into the shaft at the platform level. The loading platform itself extends from the outside face of the east wall to the elevator shaft.
The elevator and its appliances were of the automatic variety, which had come into very common use. The elevator itself was enclosed and had doors on the east and west sides which could be opened only when the desired floor was reached, and had to be closed before the elevator could again be moved. The several openings into the shaft were protected by wooden gates, each four or five feet high from the floor. To enter the elevator at a given floor the gate was lifted. The mechanism operating these gates was such that normally they could not and would not be lifted until the elevator was at that particular floor, and the elevator could not leave that floor until the gate was lowered to protect the shaft opening. There were provided -- presumably for emergency purposes -- means whereby one might reach over the gate into the shaft and throw a latch or mechanism which would break the electric connection and release the gate so that one might then raise it even though the elevator was not then there. But in the ordinary use of the elevator there was no occasion to so operate this mechanism, and thus normally the shaft opening would not be left unprotected when the elevator was not at that level.
For about a year and a half prior to the accident Voigt and several other truck owners, under arrangement with appellant, were in the habit of calling at the building several times daily for the purpose of delivering merchandise which had arrived for appellant at freight depots, or for taking away packages ready for delivery elsewhere. These truck men were not paid salaries and did not work full time for appellant, but were paid by appellant an agreed sum for each package brought to or taken from the building. They were general truck men, doing the same sort of work for various other concerns. The trucks were driven into the alley next to the loading platform, where they discharged appellant's packages, or loaded them for delivery as directed by appellant.
Voigt had been calling there, generally four times daily, during the year and a half preceding his injury. His general custom, particularly during the last four months of this service, was to enter the building at the loading platform, and if the elevator did not happen to be there to press the button and await its arrival, whereupon, if there was no operator on the elevator, he would lift the gate and take the arriving merchandise onto the elevator and to the floor where it belonged; or he would go to the second floor or to the shipping room on the first floor to learn whether there were outgoing packages for him to take.
It seems that, notwithstanding the automatic nature of the elevator, an elevator operator had been employed there most of the time, but that for about four months preceding the accident appellant's working force had been reduced, and that much of the time, particularly during the last four weeks, there was no operator for the elevator, and Voigt had been directed by appellant's manager to operate the elevator himself.
The opening in the wall at the loading platform was covered by a heavy steel rolling curtain, which, because of the difficulty of moving it, was rolled up during business hours. In winter this opening was covered by a heavy canvas curtain, which was fastened on the inside of the wall at the upper part of the opening, and dropped down to the platform. Sometimes it would hang down below the platform on the outside, but at other times it would lie on the platform, causing some folds there. The practice was to push this curtain aside and enter through the opening, whereupon the curtain would fall into place, closing the opening. When the opening was closed the platform was dark, there being no artificial light maintained there.
So much of the loading platform as was over the bottom of the opening in the east wall was covered by an iron plate, and between this plate and the elevator shaft the platform consisted of a rough wooden floor which was a half inch above the level of the plate.
At 4:30 p.m. of January 7, 1931, Voigt brought his truck into the alley and, as was his custom, mounted the platform and drew or pushed aside the canvas curtain, evidently intending to push the electric button on the outside of the shaft and bring the elevator to the platform, if it was not already there. In pushing the curtain aside and advancing through the opening, in some manner he evidently became entangled in the folds of the curtain and stumbled over the uneven floor and toward the shaft. Grabbing at the shaft gate, which was not then there, he pitched into the elevator shaft and fell about twenty feet to its concrete bottom, sustaining the injuries for which his suit was brought.
Immediately after the fall it was found that the platform gate was raised and the elevator was at the floor above, thus leaving the shaft opening at the loading platform wholly unprotected. Upon examination the next morning it was found that the latch or mechanism which held the shaft gate against movement when the elevator was at another floor was broken, and a ...