Casper v. Barber & Ross Company

• Decision Date: 19 January 1961
• Docket Number: No. 15520.,15520.
• Citation: 109 US App. DC 395,288 F.2d 379
• Parties: James A. CASPER and Marguerite Casper, Appellants, v. BARBER & ROSS COMPANY, a corporation, and Warfield & Sanford, Inc., a corporation, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

109 US App. DC 395, 288 F.2d 379 (1961)

James A. CASPER and Marguerite Casper, Appellants, v. BARBER & ROSS COMPANY, a corporation, and Warfield & Sanford, Inc., a corporation, Appellees.

No. 15520.

United States Court of Appeals District of Columbia Circuit.

Argued June 15, 1960.

Decided January 19, 1961.

Petition for Rehearing Denied February 14, 1961.

Mr. Joseph D. Bulman, Washington, D. C., with whom Messrs. Sidney M. Goldstein and Leo N. McGuire, Washington, D. C., were on the brief for appellants. Mr. John E. Kennahan, Washington, D. C., also entered an appearance for appellants.

Mr. Frank F. Roberson, Washington, D. C., with whom Mr. John P. Arness, Rockville, Md., was on the brief, for appellee Barber & Ross Company.

Mr. Thomas S. Jackson, Washington, D. C., with whom Messrs. Robert M. Gray, John W. Jackson, Steven A. Winkelman, and Maurice Friedman, Washington, D. C., were on the brief, for appellee Warfield & Sanford, Inc.

Before WILBUR K. MILLER, Chief Judge, and BAZELON and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

James A. Casper, hereinafter referred to as appellant, was an elevator inspector employed by the District of Columbia, who was injured May 2, 1956 while riding on the top of a slowly ascending freight elevator. He had previously ordered repairs to be made on three elevators located in the premises of appellee, Barber & Ross Company (herein Building Company). Repairs were performed by appellee, Warfield & Sanford, Inc. (herein Elevator Company). Casper sued both appellees. The trial judge directed a verdict for appellee, Barber & Ross Company, at the close of the plaintiffs' case. Warfield & Sanford, Inc. filed its motion for directed verdict at the close of the evidence, but a ruling thereon was reserved. The jury returned a verdict awarding damages to Casper and his wife¹ against appellee, Warfield & Sanford, Inc. After verdict Warfield & Sanford, Inc. filed its timely motions for judgment n. o. v. which the judge granted,² and for a new trial. The latter motion asserted errors of law properly cognizable in the consideration of such a motion, but the judge did not rule on the motion for new trial. No cross appeal was taken by the Elevator Company, and appellant has made no claim of error because of the failure of the judge to rule on the motion for new trial.³

Appellant presents questions as to whether or not (1) the District Judge erred in setting aside the verdicts against the Elevator Company and entering judgment for the Elevator Company and (2) in directing a verdict for the Building Company.

Mr. Casper, about 58 years old at the time of the injury, had had long experience in the installation, repair, maintenance and service of elevators. Beginning in 1923, and thereafter employed by Houghton, Otis and other elevator companies, his service and training culminated in 1938 in his becoming an elevator inspector for the District of Columbia.

His duties in that capacity included the making of periodic inspections of all types of power elevators. The inspection process included two phases, one "routine," under his own control, the other a "check-up," to ascertain whether or not required repairs had been accomplished. He worked in sole charge of an assigned territory, inspecting power-driven elevators about every four months. The elevator on which he was injured was a power-driven elevator as to which Mr. Casper personally had made "routine" inspections some three or four times a year over a period of four or five years before the date of his injury. A "routine" inspection of the Barber & Ross elevator entailed some 20 to 30 minutes of his time. Such an inspection consisted of examining the equipment in the lower level of the hatchway or shaft, the doors, cables, switches and related equipment, after which he normally would proceed to the "overhead," the penthouse, there to conduct further inspection of the machinery and controls. Every "routine" inspection included such surveys.

To execute his function when on a routine inspection, Mr. Casper mounted the top of the elevator, and then called upon a person supplied by the management of the building to operate the car. He testified it was necessary to ride on top of the elevator since only from that vantage point could all equipment in the elevator shaft really be examined. "It's the only place you can look at cables, it's the only place you can get a constructive and full view of your doors and the equipment of the shaft itself." When on top of the elevator in the course of a routine inspection, he customarily arranged for signals between himself and the operator, usually by a call such as "Let's go up"; "Hold it"; "Take it down a little bit"; "Hold it."

Upon discovering in the course of a routine inspection that some work on the elevator or the equipment is required, the inspector must prepare a report, after which a letter will be directed to the building owner prescribing a certain period within to complete the indicated repairs. Thereupon the building owner is required to cause the repairs or adjustment to be effected. When the elevator inspector's office has been notified that the indicated work has been done, the inspector once again visits the premises to "check up," to examine the extent and the nature of the compliance with the repair order.

To reach the penthouse in the shaft where the injury occurred, Mr. Casper on each previous occasion had come to the second floor of the Building Company, had then climbed on top of the elevator, and directed whoever was running it "to take the car up, stop it, take it up, to stop it, up, till I reached a point that was convenient for me and safe, and give directions to either — on down, probably." He personally had made such a "routine" inspection on March 26, 1956.

Mr. Casper thus was familiar with this particular elevator. The penthouse floor where the machinery was located was constructed of heavy metal grille. There was an opening in the metal grille about 22" × 30". On each of his previous routine inspections Mr. Casper, standing on top of the elevator, had passed through that opening up to his waist to make his inspection above the grille.

The elevator was operated by a rope which could be grasped by a person on top of the elevator. If the rope were pulled up, the car could be sent down. If the rope were pulled down, the car could be sent up. If the rope were "centered," the car would stop.

On May 2, 1956, Mr. Casper, Mr. Stout, an employee of the Elevator Company, and a repairman's helper, Mr. Madigan, spent the morning together while Mr. Casper was inspecting two other elevators in the Building Company's premises. They were out for some 30 to 45 minutes to have lunch. Mr. Casper had two beers but Stout had none. Returning, the three went in the elevator to the second floor. There Mr. Casper pushed up and propped a guard gate. The elevator was sent down until its roof was flush with the second floor. Mr. Casper then walked onto the elevator roof. From the roof of the elevator to the opening in the grille work was a distance of about 10 feet. Mr. Casper was about 5'5" tall. With him on top of the elevator was Mr. Stout, who was about 5'9" tall. Thus the distance between Mr. Stout's head and the penthouse grille was some four feet three inches and comparably, from the top of Casper's head to the floor of the penthouse, it was about four and one-half feet. Mr. Madigan remained on the second floor. There was nothing overhead to obstruct Mr. Casper's vision. The grille was in plain sight. Either Mr. Stout or Mr. Casper could have reached the rope to stop the car as it ascended.

Mr. Casper testified that he made no suggestions as to how he and Stout were to get up to and through the aperture. Neither Mr. Stout nor Mr. Madigan had ever been up on the elevator. Mr. Casper had never measured the overhead clearance although "It's my job to measure it; yes, sir."

"If you had measured it you would have known what clearance there was between the top of the car and the overhead grille when the car came to its automatic stop, wouldn't you? A. Probably."

Mr. Casper had in mind that the elevator would be brought to a point, perhaps a foot from the top of the grating, after which the car would be eased up, a little bit at a time, "inching it up," as Mr. Casper himself had done on other occasions, but he said nothing to Stout about such a possibility. Mr. Casper simply had no conversation about any such plan or procedure.⁴

The roof of the elevator itself was solid. As Mr. Casper stood on top of it he could not see where the mechanic's helper was. He did not know whether or not the helper was on the car. He knew that if the helper were operating the elevator from below, the upward course could be changed only as the result of someone's "telling him to start or stop." The elevator's upward speed was very slow, estimates varying from one-half foot per second, to 35 or 45 feet per minute.

Thus without the formulation of any particular procedure, Mr. Casper and Mr. Stout took their positions on the top of the car. Mr. Casper gave no instructions as to the management of the car. Mr. Stout placed himself under the aperture, grasped the rope and started the car. He kept watching the aperture as the elevator slowly ascended.

Mr. Casper testified that when the grille was six or eight inches above his head he cried out, "`Stop it,' or `Hold it' or some expression * * *." The elevator continued to move upward however. He then dropped to the roof of the elevator "to make himself * * * as small as he * * * possibly could." He had no clear recollection of when the elevator actually stopped ascending.

Such generally, was the state of the evidence when the Elevator Company's motion for directed verdict at the close of appellant's case was denied. The Building Company's similar motion was then granted.

The Elevator Company's motion for directed verdict was renewed at the close of all...