[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 78 While the trial judge did not specifically define to the jury the questions on which they were to pass, apparently he intended to permit them to find the appellant negligent upon one or both of two theories.
The first of these was that the appellant was guilty of negligence in permitting his elevator boy temporarily to leave the elevator as he was accustomed to and as he had done on the occasion of the accident for the purpose of delivering parcels throughout the store. The second one was predicated on the defective condition of the latch of the elevator door, which, failing to catch, permitted the door if closed with sufficient force to rebound and thus to stand open.
We are entirely unable to see how the temporary absence of the elevator boy became the proximate cause of respondent's accident. He left the door in a safe condition when he went away, and on respondent's theory it was only placed in an unsafe position by the subsequent use of the elevator by appellant's manager.
The appellant was not bound as against an employee to furnish at all times or at any time a regular attendant to run the elevator, or to prohibit other employees from using it, if competent, and there has been no question of the competency of the manager to operate it. This being so, the employer was not negligent simply because he imposed on the elevator boy other duties which occasionally took him away from the elevator. Furthermore, the absence of the boy was not, in any sense, the proximate cause of respondent's accident. The door through which she fell was left open in the use of the elevator after the boy departed, either because the latch failed to catch, or because the manager carelessly did not close it, or because some other person unwarrantably interfered with it. In either case, the mere absence of the boy did not legally or *Page 80 proximately become the cause of respondent's accident. If the trouble was with the defective latch, the appellant's liability is entirely independent of the boy's absence or presence, and certainly the latter's absence did not in any legal sense justify the manager in being careless, or another person in interfering with the elevator, if either of these things occurred. It is thus perfectly apparent that between the boy's departure and the accident, some entirely independent cause intervened to produce the latter, and it was error to submit this question to the jury.
We next come to the question of the defective latch. Respondent was entitled to go to the jury on that theory of negligence, provided her evidence permitted the jury to find that the latch did cause or contribute to her accident. We do not think, however, that the evidence as now submitted to us tended to establish the necessary connection between the latch and the open elevator door which caused her fall. The employee under whose operation it is claimed the door was left open was called as a witness by the respondent herself. He testified explicitly and unqualifiedly that he closed the door, but could not tell whether it latched. This witness is the only one who speaks upon this specific point, and having been called by the respondent he must be regarded as credible, although this would not prevent the respondent from showing, if possible, by other testimony that the door did open after he pushed it shut. But having been called by her, his evidence must be accepted as controlling unless there is other evidence from which the jury could find the fact to be otherwise than as testified to by him. The specific question, therefore, arises whether there is any evidence from which a jury might be permitted to conclude that after this witness closed the door as stated by him it rebounded and opened eighteen inches as the result of the defective latch, because the respondent must rely at this point upon the defective latch. If the employee negligently left the door open independent of the latch she cannot recover on any theory now presented to us. *Page 81
We think there is no evidence which would permit a jury thus to conclude. Some time — it does not appear just how long — after this employee says he closed the door, respondent swears she found it open. While, as stated by the trial judge, there is no evidence to show that some one else had opened it in the meantime, there is, on the contrary, no testimony which so excludes the possibility of such act that the jury could say that its open condition at the later time contradicts the fact testified to by Kelling that he left it closed. Thus, no different versions are permitted about the conditions which followed Kelling's use of the elevator, and the respondent is bound by the latter's testimony. In view of the entire testimony of this witness the further question might arise, even if we were permitted to say that the elevator door stood open eighteen inches in consequence of Kelling's use, whether it would be other than speculative to say that such open condition was due to the defective latch rather than to his failure to shut it or to some other cause, but we refrain from discussing that question as it is not now before us.
Various other objections and exceptions were argued which it is unnecessary to consider in view of our conclusions upon the points discussed.
The judgment appealed from must be reversed, with costs, and a new trial granted.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment reversed, etc.