Crane Elevator Co. v. Lippert

• Citation: 63 F. 942
• Decision Date: 01 October 1894
• Docket Number: 119.
• Parties: CRANE ELEVATOR CO. v. LIPPERT.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

63 F. 942

CRANE ELEVATOR CO. v. LIPPERT.

No. 119.

United States Court of Appeals, Seventh Circuit.

October 1, 1894

George H. Noyes, for plaintiff in error.

Kate H Pier (Edward S. Bragg, of counsel), for defendant in error.

Action by Frank Lippert against the Crane Elevator Company for personal injuries. Plaintiff obtained judgment. Defendant brings error.

This was an action commenced in a state court, and removed thence into the court below. The defendant in error, through his guardian ad litem, brought suit against the plaintiff in error to recover damages for personal injuries alleged to have been caused by its negligence. The defendant in error who was 15 years of age, was at the time of his injury September 12 1891, employed as a check boy in the office of the Western Union Telegraph Company, which was located in room 6 on the basement or ground floor of the Chamber of Commerce building, in Milwaukee, Wis. The office has two entrances or exits,--one opening from and upon the public sidewalk along Michigan street, and being the only entrance and exit of customers of the Western Union Telegraph Company; and the other opening from and into the main or central hall, located on the basement or ground floor of said building, and being the only mode or way of ingress and egress into and from said office for the servants and employes of said Western Union Telegraph Company. The basement or ground floor of the Chamber of Commerce building is occupied by various offices and rooms used for business purposes, opening into said main or central hall, and from which a stairway ascends to the upper floors of said building. The hall is of the width of about 20 feet, and had been for a long time used as a common thoroughfare for all persons employed in said offices and rooms, and for all persons having occasion to call upon them. It was the only passageway or thoroughfare by which any employes or servants of the Western Union Telegraph Company, or those calling upon them, could enter or leave the office and operating room of said telegraph company. The various offices and rooms on the basement or ground floor of the Chamber of Commerce building are occupied by tenants of the owner of the building. Prior to the 1st day of September, 1891, the plaintiff in error had entered into a contract with the owner of the Chamber of Commerce building to take down and remove the old elevator, and put up a new one in its place. The materials composing the old elevator, by the terms of the contract, became the property of the plaintiff in error. Some two weeks prior to the injury complained of, the plaintiff in error had taken down the old elevator, and placed the materials composing it in the main or central hall. These materials, consisting of timber, iron, and machinery, were placed on the side of the hall adjoining the room occupied by the telegraph company, about 5 or 6 feet from the doorway leading into the telegraph office, and extending thence, in the direction of the exit from said hall, a distance of about 18 or 20 feet, and extending out into the hall from 4 to 6 feet, and they were heaped up from 18 inches to 3 or 4 feet in height. It is not shown whether these materials were placed in the hall with the previous consent of the owner of the building or not, but they remained there for such a length of time before the injury happened that he would be chargeable with knowledge of their presence there. This mass of materials was left in the hall without any guard rail around it, and without any light or warning of any kind being provided by the plaintiff in error, aside from any light which may have been kept there at times by the owner of the building.

The defendant in error was the only witness testifying touching the circumstances connected with this injury. He testified that he had been at work in the Western Union Telegraph office for about 2 years before the time of the accident, and was 15 years of age. He went to work at the usual time, 5 o'clock and 30 minutes, p.m. of September 12th. He further testified as follows: 'I took my hat, and went out into the hall. I thought I had gone far enough to avoid the articles lying around the hall. Then I started walking down the hall slowly, until I came to the Board of Trade window. I tripped and fell, and struck my shoulder on some iron material lying around there. Then I got up and walked out; went home, and my mother put some liniment on my shoulder, and all along to the elbow. * * * I went to work the next day at 5:30 p.m. I worked about an hour, and then I could not stand it any longer, and asked to be excused. I remember when the new elevator was put in the Chamber of Commerce building. It was two weeks or more before the 12th of September, 1891. * * * The office of the Western Union Telegraph Company is on the west side of the building, extending from the front to the rear on the ground floor. At the time I fell, there was only one door by which I could go into the operating room, and that was at the end of the corridor. * * * On the evening of the 11th of September, I went into the Chamber of Commerce building by the alley entrance. I walked east, and then turned and walked south, up to the door of the operating room. There were planks, cables, and iron materials lying on the west side of the wainscoting, and extending at the furtherest point about five or six feet from the wainscoting, toward the center of the corridor. * * * The corridor had been piled up this way for two weeks or more. When I came out at one o'clock in the morning, there was no light at all in the corridor. I could not see anything. I knew the rubbish was there, and I thought I went far enough away from it, so as not to be caught on it. I tried to get away from it. I went five feet from the door, towards the east; then I walked nearly down to the turn, and was going to go out to the alley entrance. Before I got there I fell, right near to the Board of Trade window. I walked slow because I knew these things were lying around. So I tried to be careful. There were no red lanterns, or any kind of light. The gas jet in the hall was not lighted. The gas jet was about four feet from the wall above. I could not reach up to the gas jet. ' Upon cross-examination he further testified: 'So far as I know, the pile was just the same when I went out when I went in. I cannot tell whether it had been touched for some days or not. It was about the same. There is usually one gas jet burning when I come out at one o'clock. The one at the crossing of the T. * * * I do not remember whether there was a light there or not Friday night, when I went in. * * * The light in the hall was usually lighted, but I often saw it out, too. I don't know who put it out. I never saw them put it out. When the light is burning, I can see the material. ' In addition to the testimony of the defendant in error with respect to the lighting of the hall, a number of other witnesses testified on that subject. Some of them testified that the hall usually had a light burning at 5:30 p.m., but generally it was not lighted at 1 o'clock a.m. Others testified that a light was kept burning in the hall all night, and if, by accident, the light went out, it was relighted by the watchman of the building. As to the character of his injuries, he testified that he fell, and struck his shoulder upon some iron. He got up, and walked home. He felt some pain in his arm, below the shoulder. It was swollen the next day, but he returned to work and after working about an hour he went home, and went to bed. About four days after a doctor was called. His arm was then badly swollen. After treatment by two or three different physicians, he went to the hospital, November 19th, where he was operated on by a surgeon. He was in bed at the hospital about a month, and had to carry his arm in a sling until after Christmas. About a week before leaving the hospital, a piece of diseased bone was taken out of his arm. It gradually healed up. His arm has often pained him since he left the hospital. It pains him most when he has taken cold. He cannot bear his weight on the arm. He has a pretty good arm, considering the injury and the amount of destruction of bone. Whether the usefulness of his arm would be permanently impaired or not was a disputed question. Since his discharge from the hospital he has worked about six or seven weeks. The medical testimony tended to show that, when admitted to the hospital, he was suffering from tubercular osteomyelitis, resulting from the presence of microbes or tuberculous germs in his system; that, if these microbes or germs had not been present in his system, the fall and consequent bruise would not have resulted in the serious injury from which he suffered.

Before WOODS, Circuit Judge, and BAKER and SEAMAN, District Judges.

After making the foregoing statement of facts, the opinion of the court was delivered by

BAKER District Judge.

The plaintiff in error contends that no contract relation existed between it and the defendants in error, and that the injury complained of did not arise out of, or occur in consequence of, any privity of contract between it and the defendant in error, and hence that no duty is shown, the violation of which gave him a right of action in this case. It is also insisted that the remedy which the defendant in error might have had against the owner of the building or his employer does not extend to a recovery against the plaintiff in error. It is firmly settled that, in order to maintain an action for injury to person or property by reason of negligence or want of due care, there must be shown to be existing some obligation or duty towards the plaintiff, which the defendant has disregarded or violated. This is the basis on which...