This suit is brought by the plaintiff against the defendant to recover damages for the alleged negligent killing of a minor son, who was at the time an employee on the premises of the defendant.
The declaration contains three counts and they allege in substance that the accident which resulted in death was due to the negligence of the defendant in failing to have and keep in order a door or gate, near the place assigned the plaintiff's son to work, and kept and maintained for the passage of a freight elevator, used in defendant's business.
The questions in the case are presented upon a single exception and that is to the refusal of the Court to grant the defendant's first prayer. The prayer is as follows, that there is no evidence, in the case, legally sufficient to prove that the accident and injuries to the plaintiff's son, which resulted in his death, were due to a failure of the defendant to fulfill any of the duties which he owed to the plaintiff's son, as alleged in the declaration, and the verdict must be for the defendant.
The plaintiff offered no prayers, but the Court granted the defendant's second prayer which submitted the proposition, *Page 478 that the plaintiff was not entitled to recover, unless they find from the evidence that the death of the plaintiff's son was caused exclusively by the negligence of the defendant, as alleged in the declaration, and without any negligence on the part of the deceased contributing to the accident.
The case was submitted at the close of the plaintiff's evidence and the judgment being for the plaintiff, the defendant has appealed.
It becomes necessary, then, for us to examine the testimony in the record to ascertain whether there was sufficient evidence to establish the right of the plaintiff to recover.
The defendant was engaged in the business of conducting a department store, at the southeast corner of Eutaw and Saratoga streets in the city of Baltimore, and at the time of the accident the plaintiff's son, a boy of about twelve years of age, was in his employment. The boy was employed to take waste-paper from the floor of the store and deposit it in a waste-paper box, located in an ante-room to the west side of the elevator shaft and about four (4) feet in front of the elevator door. The elevator ran from the basement of the building through a shaft to the fifth floor, and from the first floor it was enclosed by a wooden frame work, with openings on each floor. The door which closed the opening on the first floor was about six feet wide and six feet long, and was raised by pulley weights attached to chains. The elevator was used alone for carrying freight. On the morning of the accident, the boy was at work in the ante-room on the first floor depositing paper in the box, when the elevator ascended from the basement and stopped at the first floor. The elevator boy testified that when he came up from the basement and opened the elevator door the boy and the porter were standing in the ante-room, about two feet from the elevator shaft and the waste-paper box, that the door to the elevator shaft was out of order, and he had to lift it up and put a curtain pole under it to hold it up; "that he put the pole under the left hand corner of the door, looking out from the elevator, the corner nearest the waste-paper box and that the corner was not *Page 479 lighted." He further testified, that he did not close the elevator door, when the elevator moved to the next floor, but left it for the porter to close; that when the elevator had ascended about five or six feet, he heard some one call, and looking down the elevator and the shaft, he saw the boy lying down in the basement of the building; that he did not see the boy on the elevator, nor did he see him fall from it.
The porter, who was at work in the ante-room, testified that the boy got on the elevator to show where to put the paper, and told the elevator boy to stop at a chute, which was about five or six feet above the ante-room; that the elevator door was left open, and while he was engaged taking the prop from under the door, something brushed him on the toe of the shoe and he looked down and saw the boy, in the bottom of the cellar. He also testified that the door had been out of order for three or four days and that the accident could not have happened, if the elevator door had been closed.
We have stated the material portions of the testimony as bearing on the case and we think there was sufficient evidence of negligence which required the case to be submitted to the jury. The question of the alleged negligence of the appellant was properly submitted to the jury in the defendant's second prayer, which instructed them to the effect that the plaintiff was not entitled to recover unless they found from the evidence that the death of the plaintiff's son was caused exclusively by the negligence of the defendant, and without any negligence on the part of the deceased directly contributing to the accident. The negligence of the appellant in this case was not a question of law for the Court but of fact, to be determined by the jury upon all the facts and circumstances surrounding the accident.
According to the evidence the accident happened, either by the boy's falling from the first floor to the basement through the doorway, which had been left open after the elevator had ascended, or by falling from the elevator to the floor, and then through the open doorway to the basement. There was not sufficient space between the elevator and the shaft for him to *Page 480 have fallen off the elevator and down the shaft to the basement. The question of negligence and contributory negligence was properly submitted to the jury and we see no reason, why the judgment should be disturbed.
There can be no difficulty about the law, applicable to the facts of the case. It is thus stated in B. O.R.R. Co. v.Baugh, 140 U.S. 368. "A master employing a servant impliedly engages with him that the place in which he is to work and the tools or machinery with which he is to work, or by which he is to be surrounded shall be reasonably safe. It is the master who is to provide the place and the tools and machinery and when he employs one to enter into his service he impliedly says, to him, that there is no other danger in the place, the tools and the machinery, than such as is obvious and necessary."
In the case at bar there was evidence that the ante-room, where the boy was at work was insufficiently lighted; the elevator door was out of order and repair, and had been for some days before the accident, the waste-paper box where the boy was at work was within four feet of the open doorway, and in a small room but dimly lighted. Upon these, and the other facts set out in the record, we think the case was properly left to the jury, and the Court committed no error in rejecting the defendant's first prayer, which instructed the jury that there was no evidence legally sufficient to prove that the accident was due to a failure of the defendant to fulfill any of the duties which he owed the plaintiff's son.
For these reasons, the judgment will be affirmed.
Judgment affirmed, with costs.
(Decided June 9th, 1904.) *Page 481