Peoples' Bank v. Morgolofski

Fowler, J., delivered the opinion of the Court. The appellant, who was defendant below, owns a building in the City of Baltimore, which is occupied by a number of tenants for business purposes.. There is an elevator in this building which was used both for passengers and freight. The plaintiff, now appellee, was employed by one of these tenants, and was seriously injured by falling from the fourth floor to the cellar through the elevator shaft.

For the injuries thus sustained the plaintiff sued the defendant in the Superior Court of Baltimore City, and recovered-judgment. From this judgment the defendant has appealed. The two questions, as usual in cases of this kind, are— first, was the defendant guilty of negligence? And, second, was the plaintiff guilty of contributory negligence ?

At the close of the testimony, both parties having produced witnesses to sustain their respective contentions, the plaintiff offered two prayers, which were granted, and the defendant seven, four of whigh were rejected and three granted. Inasmuch as defendant’s first prayer is a demurrer to the evidence, it will be necessary to examine the testimony at length. At the time of the accident the plaintiff was working for a tenant of the defendant. He was proceeding up ⁴³⁹ the stairway to the place of business of his employer on the fourth floor, when he heard the elevator going up the shaft.

When he arrived at the fourth floor, he heard the elevator thrown open on that floor. Having accomplished the object of his visit, he returned to take the elevator, which was just outside the door of his employer’s office. His testimony was that he could not see at all in the hall, and, having heard the elevator go up, the door of the elevator being open, and the bar back, he was sure the elevator was in its place. He stepped in to take the elevator, and fell down five floors, into the basement, and was seriously and permanently injured, as set forth in the testimony.

This elevator was used every day for the people employed by the various tenants, and the boy in charge of it who was employed by the defendant, daily brought down the working people from the upper stories of the building. There was a painted window on one side of the elevator, and it was very dark there ; there was no gas light there, and the distance from the door out of which the plaintiff came on his way to take the elevator is only about two feet from the elevator door. On reexamination, the plaintiff said he heard the elevator door thrown open ; that he was sure the elevator was there, and that it was so dark that he could not see whether it was there or not. The elevator boy was not in charge .at the time of the accident, nor was he aware of it until informed by one of the witnesses.

Several of the plaintiff’s witnesses testified that this boy did not attend to his duties properly, and that he was frequently called when he was not at his.post. The attention of the defendant, through its cashier, was called to these facts-, and also to the fact that the shaft was frequently left open. The place around the elevator door was dark when coming out of a light room. On the part of' the defendant it was shown that on the day of the accident the elevator boy left the building be ⁴⁴⁰ fore twelve- o’clock, and went to his dinner.

The boy testified that on that day he cut off the water, and put the elevator in the celler. On his return, he found the plaintiff lying in the cellar, and the elevator at the sixth floor of the building. He did not know how the elevator got there, hut said that “the people” would run the elevator when he was at dinner, and that one of the workmen told him that some of the people, “whoever it was,” did not keep the gates fastened. One of the witnesses testified that this hoy was a worthless and careless fellow, “and that he was a most disgraceful liar.” The defendant also offered testimony tending to show that the elevator in question was an ordinary freight elevator, and that it was not safe for passengers, and the cashier of the defendant denied -that he had been warned of the danger.

He believed that Ross, who wqsin charge of the elevator, was a correct.hoy, and-he had given him repeated instructions that the elevator should be used only for freight. The people in the building had often run the elevator themselves. He admitted, however, that'he knew the elevator had been used as a passenger elevator to carry the people employed in the building, hut he said he was under the impression that the -defendant had no control over it. Although he was aware the elevator was so used for six years, he never gave notice of any kind that it was for. freight alone.

Upon these and other facts, Dot necessary further to-refer to, it was submitted to the jury by the instructions of the Court to find whether the defendant was guilty of negligence, and, if so, whether the plaintiff was-guilty of such contributory negligence as would prevent him from recovering notwithstanding the negligence of the defendant. In the first place, it is. very clear from the foregoing-recital of the facts given in evidence that there was testi ⁴⁴¹ mony before the jury tending to prove, if the jury believed it,, that the defendant did not use that reasonable caution and vigilance which is required in the management of an elevator, which like the one described by the witnesses was used both for passengers and freight. The elevator was in charge of and operated by the defendant’s agent, and it was hound at all times to use reasonable caution and care to make the elevator safe for all persons who had a right to use it, or who did in fact use it with defendant’s knowledge and consent. Engel vs. Smith. 82 Mich., 1 .

This reasonable rule is also laid down in Shearman & Redfield on Negligence, section 719, where it is said that, although elevator shafts and openings are now very generally used in warehouses and other places of business, they are dangerous, especially if located, in dark places, or in such close proximity to doors that a person entering-the door may step into them unawares. And it is also said that “when elevators remain under the control, of the owner of the building he is liable to his tenants for any defect in them, their appointments or their management w'hich reasonable care and vigilance would have prevented. ” It must he admitted that the exercise of the most ordinary care by the defendant in this case would have resulted in keeping the elevator door closed, and in preventing the injury to the plaintiff. But in regard to the other question, whether the plaintiff