Bedell v. Berkey

• Decision Date: 11 October 1889
• Citation: 76 Mich. 435,43 N.W. 308
• Court: Michigan Supreme Court
• Parties: BEDELL v. BERKEY.

43 N.W. 308

76 Mich. 435

BEDELL v. BERKEY.

Supreme Court of Michigan

October 11, 1889

Error to superior court of Grand Rapids; EDWIN A. BURLINGAME Judge.

Action by Thomas H. Bedell against Julius Berkey, to recover damages for injuries sustained from falling into an elevator shaft owned by defendant. Judgment for plaintiff, and defendant appeals.

J C. Fitzgerald, (F. A. Stace and Charles Chandler, of counsel,) for appellee.

CAMPBELL J.

On March 21, 1887, at about 4 o'clock in the afternoon plaintiff fell down an elevator shaft from the ground floor to the bottom, in a building partly occupied by defendant for making wooden tripods. The declaration relies as grounds for the charge of negligence on the alleged failure to have the elevator shaft guarded in any way, and the darkness of the room upon which it opened. Plaintiff was averred to have been unacquainted with the premises, and to have been there for the lawful purpose of transacting business, at defendant's request, and to have been exercising due care. The defendant's testimony indicated that the elevator had proper doors, and was not left open or unguarded. It also indicated that the room was not without sufficient light, and that plaintiff had no business where he was, and exercised no caution, but was hurt by his own heedlessness or fault. It was claimed on the trial that plaintiff's own testimony made out no cause of action and, as this question lies at the threshold of the case, it requires attention. The plaintiff's statement is, in substance, that he has held some interviews with defendant concerning the business of making and finishing tripods. The building in which the work was done had been partly occupied for defendant's work, and partly by a company making felt goods, who had recently quit work there, and removed most of their stuff. This building fronted westward on Canal street, in Grand Rapids, and at the east end of the building was an alley in the rear. There was a basement mostly under-gound, and defendant occupied a part of the first floor above the basement, and part of the upper stories including the fourth. A driveway passed along the south side of the building from Canal street to the alley. The alley was not open beyond the north side of the building. The business office was on the ground floor on the Canal-Street front. On the alley in the rear this floor was reached by a platform about 4 feet above the ground, with an open front to let light into the basement. This floor was divided by east and west walls into 3 sections, each 25 feet wide. Each of these sections had a door and a window on each side of it, opening over the rear platform, the windows being 4x9 feet, and the doors double, each leaf being 2 1/2x8 1/2 feet. The elevator in question was in the wall between the middle and north sections, opening on each, being about 9 feet from the rear of the building, and in size about 7 feet 2 inches by 5 feet 7 inches, thus projecting into each section about 3 feet 7 inches. It had double doors on each side, but there was a dispute whether those on the middle section side were in place. The shaft was lighted by a window reaching across the projection into the middle section. The doors opening on the rear platform each had two lights of 20x31 inches, and two transom lights above them, 27x28 inches. At the time of the accident the elevator in the middle section opened into a small room partitioned off by boards, and called a "storm-room," designed to keep the cold in from the rest of the section when the rear door was opened. This storm partition included the rear door and north window of the middle section up to the transom, and ran to the west side of the elevator, where a sliding door gave access from the storm-room to the rest of that section. In one or more instances plaintiff had gone up in the elevator, entering it from the north side. His declaration claims that he never was in the room on which it opened on the other side, and so he swears. The explanation he gives of entering it on the occasion in question is this: While in the office talking with defendant about the sanding and finishing of the rods or poles of which the tripods were made, plaintiff told Mr. Berkey that he knew of a machine formerly used by the Bissell Carpet-Sweeper Company, which he thought would do the work faster. Defendant, as plaintiff swears, asked plaintiff if he could get the machine, and plaintiff said he thought he could. Defendant asked him if he could get a team and go and get the machine for him, and he said he would, and did so. The machine was about 7 feet long and 5 feet wide,-called a "sander." Plaintiff states, further, that he had the sander taken by a team, and that the...