Baum v. Ahlborn

• Decision Date: 29 November 1911
• Parties: BAUM v. AHLBORN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 336

96 N.E. 671

BAUM v. AHLBORN.

Supreme Judicial Court of Massachusetts, Essex.

November 29, 1911

COUNSEL

Arthur

T. Johnson, for plaintiff.

Rommey Spring and George E. Kimball, for defendant.

OPINION

BRALEY J.

The defendant is the owner of a building, in which is a freight elevator for the use of tenants, and in the transportation of materials it was operated by the tenants who rode up and down upon it with the freight. On the day of the accident, the plaintiff, accompanied by one of his employers, entered the car and while adjusting a lifting bar which he carried, a slight movement of the elevator followed. To avoid a fall, he involuntarily reached out his left hand and in some way not clearly described his thumb passed in between the lifting pin and the plate under the cross-beam, and the elevator being simultaneously started by his employer, the thumb was crushed to the first joint. The jury could have found that if the car had rested evenly on the floor there would have been no space between the pin and the plate, and the hoisting cable would not have tightened, causing the lifting tongue to be drawn up. If it be assumed that the posted notice that the elevator was not in repair referred to a defective car, formerly in use but which had been replaced by the new car then in operation, and that the evidence offered by the plaintiff would have warranted a further finding that he was not careless, yet he could not recover without proof that his injury was caused by the defendant's negligence in the discharge of some duty which she owed him.

The entire building had been leased to one Gardner for a term of years, and upon its expiration he continued in occupation as tenant at will, and sublet a part of the third floor to Kenney & Besant, the plaintiff's employers. The lease contained no reference to the elevator, yet under the demise as well as under the tenancy at will, it was oiled and kept in repair by the engineer in her employment, who had charge of the engine and boilers of the steam plant, and the engine and elevators in the building. It was a question of fact in view of her admission in answer to the interrogatories, and the evidence of the lessee and the engineer, whether the defendant retained control, or whether the making of repairs and supervision of the engineer were mere voluntary acts for the accommodation of tenants. Kearines v. Cullen, 183 Mass. 298, 67 N.E. 243....