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June 28, 1954


Appeals, Nos. 3 and 4, Jan. T., 1954, from judgments of Court of Common Pleas of Northampton County, Nov. T., 1948, No. 50 and June T., 1949, No. 115, in cases of Helen Hucaluk v. Clyde Realty Company, Inc., and Standard Accident Insurance Company of Detroit, Michigan, and Helen Hucaluk, Admrx., Estate of Walter Hucaluk, Sr. v. Same. Judgments affirmed. Actions of trespass for wrongful death. Before BARTHOLD, P.J. Compulsory nonsuits entered; plaintiff's motion to take off nonsuits refused. Plaintiff appealed.


Philip J. Gahagan, for appellant.

J. Douglas Fackenthal, with him Irving W. Coleman and Fackenthal, Teel & Danser, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Stearne

[ 378 Pa. Page 170]


[ 378 Pa. Page 171]

These are wrongful death and survival actions in trespass instituted by Helen Hucaluk, individually and as administratrix, against Clyde Realty Company, Inc. and Standard Accident Insurance Company of Detroit to recover damages for the death of plaintiff's husband, Walter Hucaluk, Sr. Defendants, while not decedent's employers, are the owners of the building, in which decedent worked, and an indemnity company, the latter being made a party under the Act of May 2, 1929, P.L. 1518, sec. 4, as amended, 35 PS 1345; Bollin v. Elevator Construction & Repair Co., Inc., 361 Pa. 7, 63 A.2d 19.

Decedent was struck and fatally injured by a descending freight elevator when he put his head through an opening in a landing gate and into the elevator shaft in order to ascertain the location of the elevator. The trial judge entered compulsory nonsuits which the court in banc refused to remove. The appeals followed.

The undisputed facts are recited by the court below as follows: "Plaintiff's decedent, Walter Hucaluk, Sr., was for approximately 3 years and 4 months an employee of Universal Pants Company, a tenant of defendant, Clyde Realty Company, Inc., owner of a four-story factory building. Universal Pants Company occupied the second and third floors of the building and Clyde Shirt Company occupied the first and fourth floors. The four floors were serviced by a freight elevator maintained by defendant, Clyde Realty Company, Inc. The accident occurred at the elevator landing gate located on the third floor, one of the floors occupied by Universal Pants Company. The framework of the elevator landing gate was made of wood consisting of two upright pieces one on each side and three crosspieces, one at the top, one in the middle and one at the bottom. The framework was covered with one-half inch wire mesh. The landing gate was 5 feet

[ 378 Pa. Page 1726]

inches high and 7 feet wide. In the upper section of the landing gate, on the right-hand side as one faces the gate, there was an uncovered opening extending upward from the middle crosspiece to the top crosspiece. The opening was 10 inches in width and 22 inches in height and approximately two feet nine inches from the floor. The elevator landing gates on each floor were equipped with automatic locking devices so that the elevator could not be operated unless the elevator landing gates were closed. If the elevator landing gate on any of the floors was open it was impossible for anyone on any other floor to move the elevator. The elevator was motor driven but it was necessary to use a hand cable to start it. To operate the elevator from outside the landing gate it was necessary for the operator to reach through the opening and pull the hand cable. By pulling down on the hand cable the elevator was brought up, and by pulling up on the hand cable the elevator was brought down.

"There were no eye-witnesses to the accident. The manner in which the accident occurred must be gleaned from the res gestae statements of decedent made to Reverend Stephen Chehansky in the presence of decedent's wife, and from the circumstantial testimony of the elevator operator, Francis Harsch.

"Reverend Stephen Chehansky testified that he administered the last rites of the Catholic Church to decedent approximately one hour after the accident and then held the following conversation with decedent: 'I asked him, "Walter, what happened?" and he told me that at that time, during his work, he was asked to move a machine, and he went to the elevator to see whether the elevator was up or down, put his head into an opening in a shaft or window, and at that time this elevator evidently came down, and the accident happened that way.' Plaintiff, Helen Hucaluk,

[ 378 Pa. Page 173]

    who was in the room with her husband and Father Chehansky, testified that she heard the following conversation: 'Father Chehansky asked Walter what happened.... He said, "I was hit with an elevator. I was moving machinery." He looked for the elevator and... hole... the shaft... and it came down on him....'". Francis Harsch, decedent's fellow-employe, pulled the cable causing the elevator to descend, which resulted in the elevator striking decedent's head, with fatal consequences.

This case was ably tried in the court below. We need not repeat what the court has so accurately and meticulously considered and ruled in its opinions. It will suffice to state that ordinarily one who puts his head into an elevator shaft and is struck by a descending or ascending elevator is guilty of contributory negligence: Phelan v. Armstrong Cork Co., 282 Pa. 285, 127 A. 835; Levy v. Fire Association of Philadelphia, 321 Pa. 45, 183 A. 776. Plaintiff maintains, however, that defendants were guilty of wanton negligence in permitting an opening to exist in the elevator's landing gate and hence decedent was exonerated from the responsibility resulting from his contributory negligence.

In the leading case of Kasanovich v. George, 348 Pa. 199, 34 A.2d 523, Mr. Justice STERN, now Chief Justice, speaking for an unanimous Court, defined wanton negligence and its legal effect when considering the question of contributory negligence of plaintiff. He said (p. 203): "... that wanton misconduct is something different from negligence however gross, -- different not merely in degree but in kind, and evincing a different state of mind on the part of the tortfeasor. Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly

[ 378 Pa. Page 174]

    disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong. Having in mind this characterization of wanton misconduct, it will be readily seen that the principle that contributory negligence is not a defense to an action for a tort involving such misconduct is not in conflict with the rejection in Pennsylvania of the doctrines of 'comparative negligence' and 'last clear chance' hereinbefore referred to."

In that case there was testimony by plaintiff's witnesses concerning wanton negligence of the defendant's motorman. In the opinion it is stated (p. 204): "Instead of giving binding instructions for defendant, the learned trial judge should have instructed the jury that, even if the motorman was grossly negligent, plaintiff, because of decedent's contributory negligence, cannot recover, but that such contributory negligence would not be a bar if the motorman was guilty of wanton misconduct, that is, if he exhibited a reckless disregard for decedent's safety after observing his perilous position and realizing the danger involved in proceeding at a high rate of speed and without giving warning of his approach."

This case has never been overruled and has been cited with approval in numerous cases from Misorski v. Pennsylvania Railroad Company, 348 Pa. 204, 34 A.2d 526, to Zawacki v. Pennsylvania Railroad Company, 374 Pa. 89, 97 A.2d 63.

The facts alleged by plaintiff in the present case clearly do not establish defendants' wanton negligence. As above stated, it was the existence and maintenance of the opening in the landing gate which plaintiff contends amounted to wanton negligence. While the elevator was motor drive, it required a pull on a hand cable in order to start the operation of the motor and

[ 378 Pa. Page 175]

    the elevator. There could be no movement of the elevator if any landing gate remained open. There were electric bells at each floor for use if the presence of the elevator was required. The opening in the elevator door was approximately two feet nine inches from the floor and was ten inches in width and twenty-two inches in height. The opening was for the sole purpose of enabling the operator's hand to be placed through it in order to pull the cable and thus start the motor. There is not the slightest indication in the testimony that defendants were aware that decedent or any other person had any habit, as alleged, of putting their heads through the hole which would thereby cause them to be injured. Indeed, the testimony discloses that the described condition existed for many years without any indication of danger. Also, decedent worked in the premises for at least three years and was fully aware of the situation. Since there are no disputed facts for submission to a jury, and since we must accept as true decedent's own admission and plaintiff's testimony, together with all inferences in the light most favorable to her, it becomes matter of law for the court to determine whether or not wanton negligence has been established and also whether or not plaintiff is barred from recovery because of decedent's contributory negligence.

We have considered, as did the learned court below, the question of whether or not decedent was contributorily negligent and have assumed, but have not decided, that defendants, while not wantonly negligent, nevertheless, were guilty of negligence. The cases cited by plaintiff do not help her. Among them is Patrick McGuigan v. Robert Beatty, 186 Pa. 329, 40 A. 490. Defendant in that case, while in the elevator shaft, was injured by a falling weight. The counter-weighted elevator, without motor, was hand operated. It required

[ 378 Pa. Page 176]

    the operator's presence in the car and shaft in order to operate it. In Ferry v. Philadelphia Rapid Transit Company, 232 Pa. 403, 81 A. 426, there were no warning signals and decedent went into "a trap" unaware of the existence of the elevator. Schwarz v. Glenn, 244 Pa 519, 90 A. 921, was a case where the decedent was in the place of danger on the assurance of a building contractor that the elevator would not operate while he was working therein. In Strobel v. Park, 292 Pa. 200, 140 A. 877, a passenger was killed because the elevator door was not equipped with an entrance door or guard and deceased fell forward and was struck by a part of the floor projecting into the elevator shaft. In Levy v. Fire Association of Philadelphia, 321 Pa. 45, 183 A. 776, plaintiff's hand was caught between elevator doors. No evidence of negligence of defendant showing defect or fault was shown and non-suit was there granted. That decedent in the present case was guilty of contributory negligence in placing his head in the elevator shaft is so apparent that no reasonable minds could disagree as to the existence of decedent's contributory negligence. Such negligence must, therefore, be declared as matter of law: Meade v. Pennsylvania Railroad Company, 375 Pa. 325, 100 A.2d 612, and the cases therein cited. Since defendants were not wantonly negligent plaintiff is barred from recovering because of decedent's contributory negligence.

The judgments are affirmed.


The judgments are affirmed.


The defendants in this case were not running an elevator; they were operating a guillotine. They provided for a nice, convenient hole in the elevator shaft, just big enough for a head to fit into so that a ...

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