Andre v. Winslow Bros. Elevator Co.

• Decision Date: 12 July 1898
• Citation: 76 N.W. 86,117 Mich. 560
• Court: Michigan Supreme Court
• Parties: ANDRE v. WINSLOW BROS. ELEVATOR CO.

76 N.W. 86

117 Mich. 560

ANDRE v. WINSLOW BROS. ELEVATOR CO.

Supreme Court of Michigan

July 12, 1898

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by James A. Andre against the Winslow Bros. Elevator Company for personal injuries. From a judgment in favor of defendant plaintiff brings error. Affirmed.

The defendant is a corporation engaged in the manufacture and erection of elevators. In 1894 it had a contract to erect five elevators in the Chamber of Commerce, Detroit. Defendant's chief engineer, named Smith, had general charge of their erection. It had several foremen at work upon different parts of the job. Plaintiff was employed by a foreman named Preston in October, 1894, left in November, was re-employed in January by a foreman named Anderson, with whom he worked until the latter part of April. His employment was putting up the stair railings, putting on the elevator fronts, the stages, and elevator cars. Another foreman's name was Keeran, who was employed by the day. When Anderson was short of work, plaintiff sometimes worked under Keeran and in April began to work steadily under him. Keeran's work was the construction of the elevators proper, including cylinders, tanks, pumps, sheaves, beams, and cables. In this work he was foreman, working under the direction of Smith the engineer, and one Carr, the general manager. The elevators were all running the last of April. Plaintiff was injured May 11th, at which time he had been working with Keeran about two weeks. The work was nearly completed, and plaintiff and Keeran were putting on the finishing touches. It became necessary to screw down four bolts in the cylinder of elevator No. 1. To do this, they were compelled to put into the elevator shaft some plank for scaffolding. About five minutes were requisite to complete the work. A man called a "starter" was employed to stand upon the first floor in front of the elevators, whose duty it was to direct their movements. Keeran went down to the first floor to tell the starter not to use No. 1 elevator until the work was done. The starter was not there. No. 2 elevator was idle. Keeran instructed the conductor of No. 1 to take No. 2, then reversed the power of No. 1, and closed the door, which locked automatically. He then returned to his work, went in upon the scaffold, and asked plaintiff to hand him a wrench. While plaintiff was in the act of doing this, the elevator came up, struck the scaffolding, and injured plaintiff. Keeran was thrown up about eight feet, threw his arms around a post, and sat down on top of the cylinder. Shortly after Keeran left the first floor, the starter returned, and ignorant of what had been done, ordered the conductor of No. 3 into No. 1. The conductor put his hand through the elevator cage, unlocked the door, and started up with the elevator, thus causing the accident. The court directed a verdict for the defendant, upon the ground that Keeran and plaintiff were fellow servants, and that defendant was not liable for the negligent act of Keeran.

T. E. Tarsney and W. G. Fitzpatrick, for appellant.

Wells, Angell, Boynton & McMillan and Conely & Taylor, for appellee.

GRANT C.J. (after stating the facts).

The case is so well stated by Judge Steere in setting aside the first verdict that we quote it: "After carefully reading the testimony, which has been furnished by counsel, I am forced to the conclusion that the doctrine of 'fellow servant' applies in this case; and on the undisputed testimony, taken most strongly in favor of the plaintiff there can be no recovery. At the time of the accident, Keeran was only a working foreman, in charge of the final...