
    BOCK v. FELLMAN DRY GOODS CO.
    (No. 66-2818.)
    (Commission of Appeals of Texas, Section A.
    June 11, 1919.)
    1. Master and Seevant <&wkey;285(5), 286(18)— Personal Injury — Saee Place to Work-Question eoe Jury.
    In an action for death of an employe from falling into an elevator shaft in a poorly lighted room, with a greasy floor, bearing marks indicating that he slipped and fell through an opening under the gate, evidence held sufficient to require the submission of the issues of defendant’s negligence and the proximate cause of the accident.
    2. Master and Servant <&wkey;278(l) — Negligence — Weight oe Evidence.
    Plaintiff, in an action for injuries to a servant, is only required to convince the jury by fair preponderance of the evidence that the accident resulted from defendant’s negligence.
    8. Master and Servant <&wkey;276(2), 278(1)— ■ Evidence — Circumstantial Evidence.
    A master’s negligence and the proximate cause of injury to a servant may be established by circumstantial evidence.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by Kate Bock against the Fellman Dry Goods Company. From a judgment of the Court of Civil Appeals (173 S. W. 582), affirming a judgment for defendant, plaintiff brings error.
    Judgments reversed, and cause remanded for another trial.
    Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, and Ramsey, Black & Ramsey, of Austin, for plaintiff in error.
    Mark I-I. Royston, of Galveston, and Gill,Jones & Tyler, of Houston, for defendant in error.
   STRONG, J.

The plaintiff in error brought this action against the Fellman Dry Goods Company, a private corporation, to recover damages for the death of her son, alleged to have been caused by the negligence of defendant. The trial court, after hearing the evidence, instructed the jury to return a verdict for defendant; and the judgment rendered thereon was affirmed by the Court of Civil Appeals. 173 S. W. 582.

The action of the trial court in withdrawing the case from the jury is the only ruling of which complaint is made.

The facts, briefly stated, show that deceased, a boy about 14 years of age, was employed by defendant, and was killed while in the performance of the duties of his employment by falling into an open elevator shaft or well in the store building of defendant in the city of Galveston. Upon the occasion of bis injuries, deceased had been sent from the first floor of the building to the second floor into the elevator room,' for the purpose of getting some empty boxes. He used the stairway in going to the second floor. Shortly after deceased reached the elevator room, another employé, by the name of Grimm, ran the elevator to the second floor, and, leaving the platform or floor of the elevator flush with the floor of the elevator room, passed through the room where the boy was getting the boxes into the salesroom. Grimm had been in the salesroom but a short time, when he heard a noise like a large box .falling. He immediately returned to the elevator shaft, and found that the elevator had ascended to the third floor of the building, and that deceased had fallen to the bottom of the shaft, thus receiving injuries resulting in his death.

The plaintiff alleged that defendant was guilty of negligence in failing to use due care to furnish deceased a reasonably safe place to work, in that: (1) The room in which he was working at the .time he met his death, and in which the elevator shaft was situated, was poorly lighted; (2) the floor of said room, and especially near the opening of the elevator shaft, was greasy and slippery; (3) the gate to the elevator, and especially the closing equipment thereof,' was defective; and (4) the elevator shaft was insufficiently guarded.

The only testimony which we regard as material to the determination of the question presented is as follows:

George Peters testified:

“I am 18 years old. I reside in Galveston, Tex. On February 11, 1911, I was working for the Fellman Dry Goods Company. On said date I was acquainted with a boy named Jennett Bock. I saw Jennett Bock on February 11, 1911. He was in the freight room on the second floor of the new building of the company, at the north end, where the company then kept all the empty boxes. These were generally pasteboard boxes, and I was in there getting some empty boxes for the first floor wrapping counter in the new building. JennaS?!: Bock was in there when I was. I last saw him with an armful of these boxes. He was gathering up more when I left. It was about half past 12, noon, or perhaps 25 minutes after 12 when I last saw Jennett Bock alive. The room in which I saw Jennett Bock, as near as I can figure it out and remember, was 12 or 14 feet wide and about 18 or 20 feet long. There was one window to it toward the alley on the north wall. The window was frosted glass covered with netting. The room was inclosed on the east and south sides by frosted glass partitions and frames that did not go quite up to the ceiling. There was a door leading into it from the salesroom on the south. The freight elevator was operated up and down on the west side of this room, in an opening in the west wall. There was a big wooden gate with pulleys and weights to the gate used to keep the elevator shaft closed when the elevator platform was not still and standing even with the floor of the room. It was not very light in the room. It was pretty dark in there all the time. You could see upward where the light was where the partitions did not go up quite to the ceiling. You could hardly see the floor where you was walking at all. The floor was dirty and greasy. It was slippery, especially near the opening of the elevator shaft where the gate was. There was great big boxes in the north end and corner, for trash. There was empty shirtwaist pasteboard boxes and other ready-made boxes stacked up all around the other sides of the room nearly as far as the frosted glass partitions went. * * * About 10 minutes after I left Jennett Bock in the freight room I saw him lying in the alloy, where he had been taken from the bottom of the elevator well. He was covered with blood and unconscious. As I have told you before, I saw him lying in the alley near the bottom of the shaft about 10 minutes after I had left him in the freight room. I went back into the room on the same floor where I was with the boy Jennett Book after he fell through the shaft. After I got my dinner, T went hack into the freight room. The gate was down when I went back there then, but the rope to the weights of the gate was broken. The floor was dirty and greasy; there were marks in the floor by the opening where Jennett Bock fell through. In the room where I had left Jennett Bock, after I went back after the Bock boy had fallen through the shaft, I saw Mr. Grimm, who sometimes worked the elevator, and Mr. Alphonse Fellman. One or two of the lady clerks came in there before I left. Mr. Pell-man asked Mr. Grimm how the gate came to be open so the boy fell through. Grimm said the rope to the gate was broke. They were talking more when I went downstairs. As to what I was doing in the room with Jennett Bock shortly before he fell, one of the wrappers had sent me from the wrapping counter to get some empty boxes to put goods in that were to be wrapped and delivered to customers. Jennett Bock was getting boxes for the same purpose. He had his arms nearly full when I left him.”

Jacob Grimm testified:

“I used the freight elevator to go up to the second floor. I stopped the elevator at the second' floor of said,,, building on said date. I walked through the door of the elevator room to the south and into the salesroom on that floor. * * * When I left the elevator platform and stepped out on the second floor, the gate to said elevator was up or open. The elevator platform or floor was flush with the floor of said second floor. The gate to said elevator guarding the shaft thereof was operated by ropes, pulleys, and weights. The elevator was operated by pulling a long rope attached to the machinery at the top of the building. If you wanted to go up, you pulled this rope down; if you wanted to go down, you pulled the rope up. The power used was electricity. The gate was an automatic gate in one way — that is, when you stopped the elevator I would lift the gate up so that I could get out, but when I got hack in the elevator and started to go up or down, as the elevator went up or down, the gate would come back down to the floor and stop. After I left the elevator, I went through the floor of the freight room to the south on the same floor, as I said before, and closed the freight room door behind me. * * * I was away from the elevator at said time about 1 minute; would say not possibly more than 1 ½ minutes. While I was talking to the two young ladies, I heard a loud noise like a heavy box had fallen. I rushed back into the freight room where I had heard the noise. I do not know what made the noise. When I got back to where I had left the elevator, the freight elevator had gone up to the third floor and stopped. When I went back to the elevator at this time, the gate was down. The rope that held the pulleys and weights to the gate was broken. I tried to get the freight elevator back down to the second floor, but the elevator would not work. I looked down through the elevator shaft and saw the boy, Jennfett Bock, (deceased) lying there at the bottom of the pit. He was unconscious. * * * Sometimes this gate (of the elevator) got stuck, and would not come down and close the opening until Mr. Bartell, the head porter, got oil and a brush and fixed it. The gate would sometimes get stuck when it was up and would not come down.”

The bottom of the elevator gate when down lacked 13 inches reaching the floor, leaving an open space under the gate of 13 inches by 4 feet 6 inches. The witness Johnson testified relative to the size and character of this opening as follows:

“I am 53 years old. My weight is about 148 pounds, I think. I could slip through that opening into the elevator well when the gate was down. A man my size could do so.”

We are of the opinion that the trial court erred in taking the ease from the jury. While there was no direct testimony as to the cause of the accident, we think the jury might have ligitimately concluded from the circumstances in evidence that the accident was due to the negligence of defendant. The evidence suggests but two ways in which the accident could have occurred, viz. that when, the elevator ascended to the third floor of the building, the gate failed to automatically close as intended, and, by reason of the dark condition of the room, the boy walked into the elevator shaft, or that the gate did close, and the boy slipped on the greasy floor and skidded through the open space under the bottom of the gate. In either event the evidence was sufficient to sustain a finding by the jury that the accident resulted from defendant’s failure to furnish deceased a safe place in which to work. The plaintiff was not required to exclude the probability that the accident might have occurred in some other way. To so hold would impose upon her the burden of establishing her case beyond a reasonable doubt. She was only required to convince the jury by a fair preponderance of the evidence that the accident resulted from the negligence of the defendant. While it is true, as held by the Court of Civil Appeals, that in order to show that defendant’s negligence was the proximate cause of the injury the evidence must present something more than mere conjecture or surmise, it is equally true that the cause of an accident may be inferred from circumstances, Both negligence and proximate cause may be established by circumstantial evidence. The marks on the floor indicate that the boy slipped and fell into the elevator shaft. Whether the gate was up or down when he fell, the evidence was sufficient to show, in view of the fact that the floor was greasy and the room poorly lighted, that the failure to properly guard the elevator shaft was the proximate cause of the accident. As said by the Supreme Court of Iowa, in the case of Lunde v. Packing Co., 139 Iowa, 701, 117 N. W. 1068:

“A cause being shown which might produce an accident, and it further appearing that an accident of' that particular character did occur, it is a warrantable inference, in the absence of showing of other cause, that the one known was the operative agency in bringing about such result.”

We are not to be understood as holding that a preponderance of the evidence tends to show either that defendant was guilty of negligence or that such negligence was the proximate cause of the accident resulting in the boy’s death, but merely that the evidence was sufficient to require the submission of these issues to the jury for their determination. .

We are of opinion that the judgment of the Court of Civil Appeals and that of the trial court should be reversed, and the cause remanded for another trial.

PHILLIPS, • C. J.

The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the question discussed. 
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