ARGUED MAY 4, 1966.
DECIDED MAY 26, 1966. REHEARING DENIED JUNE 14, 1966.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
Nall, Miller, Cadenhead Dennis, Donald M. Fain, for appellant.
Marvin G. Russell, George G. Finch, Sr., for appellee.
It was error to overrule the motion for judgment notwithstanding the verdict.
ARGUED MAY 4, 1966 — DECIDED MAY 26, 1966 — REHEARING DENIED JUNE 14, 1966 — CERT. APPLIED FOR.
In her petition plaintiff alleged that on January 7, 1963, she was the tenant of an apartment on the 12th floor of the Darlington Apartments, and that she and her sister got on one of the automatic elevators and descended to the ground floor, where they were to get off, and, as she attempted to leave the elevator the doors closed against her, causing her to fall and sustain certain injuries. She alleged that the door to the left was equipped with a rubber bumper which, when touched, would cause that door to open, while the door to the right was not so equipped, and that the defendant was negligent in failing to have both doors so equipped and in failing to provide her with a safe means of ingress and egress.
Upon trial of the case plaintiff testified that she lived in the apartment from shortly after the building opened for tenants in 1951, until after this occasion when she was injured in 1963, and that she had used and operated the elevators practically every day during that time except when she was out of town. She knew how they operated — one just pushed the signal button and when the elevator came and opened its doors, one got on and pushed the button indicating the level at which she wished to get off. There is a button on the panel having "hold" on it, which will hold the door open if pushed, but she did not use that; if she had wanted to hold the door open she could just put up her hand and touch the rubber cushion on the left door, and she had done so many times, though she did not on this occasion. The elevator is of regulation size, well lighted, and on the occasion when she fell it was lighted as usual and operated just as it usually did. There were no foreign objects or anything of the kind causing her to trip or to slip and fall. The elevator door just struck her and she fell. Her sister, who was with her when she fell, testified to the same effect.
Westinghouse had made and installed the elevators and its electrical engineer, testifying as an expert for the defendant, asserted that he inspected the elevator shortly after the accident and also at a later time and found it to be in proper working condition. It had been installed in accord with the American Standard and Safety Code, sponsored by the American Institute of Architects, the National Bureau of Standards, and the American Society of Mechanical Engineers. The equipment in 1963 was that which had been installed in 1951.
The Superintendent of Electrical Affairs for the City of Atlanta asserted that he had made annual inspections of the elevator from 1957 through 1964 and on each occasion found it to be in proper working condition and meeting all requirements of the city elevator ordinance.
There was no proof of any defect in the mechanism of the elevator, or of its automatic doors, or of any malfunctioning of them. There was no proof of any knowledge on the part of the defendant that there had been any lack of proper functioning in the elevator or its doors, or of any malfunctioning of them. There was no evidence that it had given trouble or that it had caused others to fall on any previous occasion.
The jury returned a verdict for plaintiff, and to the overruling of a motion for new trial and of a motion for judgment notwithstanding the verdict defendant appeals.
"The testimony . . . does not by any stretch of the imagination show that the doors were not suited to the use to which they were put, or that they . . . were dangerous. The evidence does not authorize the application of the doctrine of res ipsa loquitur for the reason that mechanical devices, such as the one here involved, get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone. Any other ruling would make the occupier of the premises an insurer." Quick Shops, Inc. v. Oldham, 100 Ga. App. 551, 556 ( 111 S.E.2d 920). Accord: Underwood v. Atlanta Winn-Dixie, 111 Ga. App. 693, 695 ( 143 S.E.2d 25). There was no proof that the elevator or its doors were "out of working order." On the contrary, it appears from plaintiff's own testimony that the elevator "operated just like it usually did, normally did — just knocked me down."
As to whether rubber bumpers should have been installed on both doors, one "is not required to furnish the latest or best appliances, or to incorporate in existing equipment the latest inventions or improvements even though such devices may make the equipment safer to use. An appliance is not defective by reason of the failure to have incorporated therein the latest improvement or invention developed for its use." Emory University v. Porter, 103 Ga. App. 752, 755 ( 120 S.E.2d 668); cf. Pettit v. Stiles Hotel Co., 97 Ga. App. 137 ( 102 S.E.2d 693). "It is not incumbent upon persons or corporations using machinery in the prosecution of their business to procure the very best and safest machinery which can possibly be made. It is sufficient if the machinery is of a kind in general use, and reasonably safe for all persons who operate it with ordinary care and diligence." Davis v. Augusta Factory, 92 Ga. 712, 713 ( 18 S.E. 974). Accord: Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 (1) ( 58 S.E. 413); Belk v. Lee Roy Myers Co., 17 Ga. App. 684 ( 87 S.E. 1089). There was uncontradicted proof that the elevator met these standards.
Plaintiff was an elderly woman, and by reason of that may have been slow in moving out of the elevator, but she knew how the doors operated — having used it for some 12 years — and she knew that she could keep the door open by merely touching the rubber bumper on the left door, but failed to do so. Code § 105-603. Peniston v. Newnan Hospital, 40 Ga. App. 367, 369 ( 149 S.E. 715); Stephens v. Dover Elevator Co., 109 Ga. App. 112 ( 135 S.E.2d 593).
We can find no basis for charging the defendant with any negligence, or of failure in its duty to exercise extraordinary care in the maintenance and operation of the elevator.
While there is a rational basis for holding the operator of an elevator to extraordinary care in its maintenance and operation ( Helmly v. Savannah Office Building Co., 13 Ga. App. 498 ( 79 S.E. 364); Bullard v. Rolader, 26 Ga. App. 742 ( 107 S.E. 548)), the further holding in these cases that "on proof of the injury a presumption of negligence arises against the owner" is, for the reason assigned in Western c. R. Co. v. Henderson, 279 U.S. 639 ( 49 SC 445, 73 LE 884) no longer valid.
Bullard went to the Supreme Court on certiorari where, in Bullard v. Rolader, 152 Ga. 369 ( 110 S.E. 16) doubt was expressed as to the correctness of the ruling, but since the defendants had not been injured thereby, the statement having been made only by this court and not having been invoked or applied in the trial court, there was no reversal.
Both Helmly and Bullard were decided prior to Western c. R. Co. v. Henderson, supra, in which § 2780 of the Code of 1910, raising this presumption of negligence against a railroad in the operation and maintenance of its trains, was held unconstitutional as violative of the Fourteenth Amendment. The imposing of the standard of extraordinary care upon the operator of an elevator by this court was under the sections of the Code defining a carrier, viz., § 2712 (now §§ 18-101, 8-102), and § 2714 (now § 18-204), and placing upon it that duty. It is obvious that the imposition of the presumption of negligence followed under Code § 2780.
To meet the rule of the Henderson case the General Assembly, by Act of 1929 (Ga. L. 1929, p. 315), now Code § 94-1108, provided that proof of injury received from the running of its locomotives or cars shall be prima facie evidence of the want of reasonable skill and care on the part of the railroad company's servants, but it did not raise an unconstitutional presumption of negligence as was done by Code § 2780. The effect, then, of the Henderson case was to overrule Helmly and Rolader in this particular.
This statute, in derogation of common law, makes reference only to railroads in the operation of their locomotives and cars. Whether it should be construed to extend to the operation of elevators by others is a question not presented by this record. Cf. Mayor c. of Macon v. Macon Western R. Co., 7 Ga. 221; Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (1) ( 160 S.E. 909); Standard Steel Works Co. v. Williams, 155 Ga. 177, 181 ( 116 S.E. 636); Hood v. First Nat. Bank, 219 Ga. 283, 286 ( 133 S.E.2d 19). If it were so construed it is to be observed that there is a complete lack of evidence of negligence on the part of the defendant, its servants and agents, and there is evidence on behalf of the defendant which completely rebuts the inference. Macon, Dublin c. R. Co. v. Stephens, 66 Ga. App. 636 ( 19 S.E.2d 32). A verdict for the defendant was demanded.
Reversed with direction that a judgment be entered for the defendant in accordance with its motion for judgment n.o.v. Bell, P. J., and Jordan, J., concur.