Berg v. Otis Elevator Co.

• Decision Date: 15 September 1924
• Docket Number: 3991
• Citation: 231 P. 832,64 Utah 518
• Court: Utah Supreme Court
• Parties: BERG v. OTIS ELEVATOR CO. et al

231 P. 832

64 Utah 518

BERG v. OTIS ELEVATOR CO. et al

No. 3991

Supreme Court of Utah

September 15, 1924

Rehearing Denied December 26, 1924.

Appeal from District Court, Third District, Salt Lake County; A. R Barnes, Judge.

Action by Mrs. Gertrude Berg against the Otis Elevator Company and others. Judgment for plaintiff, and named defendant appeals.

AFFIRMED.

Edward C. Stone, of Boston, Mass., and Richards & Richards and Richards & Mitchell, all of Salt Lake City, for appellant.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, for respondent.

C. A Gillette and Dey, Hoppaugh & Mark, all of Salt Lake City, for defendant Bonneville Hotel Co.

WEBER C. J. GIDEON, THURMAN, and CHERRY, JJ., FRICK, J., concurring.

OPINION

WEBER, C. J.

The Otis Elevator Company, one of the defendants, appeals from a judgment rendered against it and the Bonneville Hotel Company. The Bonneville company has not appealed. The action was brought against the above-named defendants and William N. Clark, the case against the latter having been dismissed on plaintiff's motion during the trial.

The complaint charges that the Otis Elevator Company is an Illinois corporation engaged in installing and maintaining and repairing elevators; that the Bonneville Hotel Company is a Utah corporation and owns and operates the Newhouse Hotel in Salt Lake City, Utah, wherein there are three separate passenger elevators operated by electricity; that in September, 1920, the appellant was employed by the Bonneville Hotel Company to install on its No. 2 passenger elevator two hoisting cables, and that said work was done by William N. Clark, an employee of appellant. The proper method of attaching the cables to certain cones is fully described, and it is alleged that the appellant knew the elevator was used for carrying and conveying guests of said hotel and for practically no other purpose. It is further alleged that it was the duty of the defendants, in attaching said cables to the said cones, to properly bend the wires at the ends of the cables where they were attached to the cones, and to insert proper and sufficient babbitt or other metal for the purpose of holding the cables in the cones, and that unless the cones and cables were properly attached to each other there was great and imminent danger of the cables parting in the cones and pulling loose therefrom, thus causing the elevator to drop, all of which the defendants knew. It is further alleged that defendant failed to use sufficient babbitt or other metal for the purpose of attaching the cables to the cones, and improperly bent the wires of said cables where they were attached to the cones, so that the wires and cables were greatly weakened and damaged and broken, so that there was imminent danger of said cables parting and breaking in said cones and pulling loose therefrom, and that the defendant knew the careless and negligent manner of attaching, and knew that there was imminent danger of the cables parting and breaking in the cones and separating, and that the elevator would in its usual and ordinary operation be likely to fall and injure guests of the hotel. It is then alleged that on March 21, 1922, plaintiff was a guest of the Newhouse Hotel and was a passenger on No. 2 elevator, and that while such passenger the hoisting cables, by reason of the negligent installation of the cables by the Otis Elevator Company, broke in the said cones, and the elevator carrying plaintiff and other passengers dropped from a point near the mezzanine or entresol floor to the basement, a distance of about 35 feet, and plaintiff was seriously injured.

In its separate answer, the Otis Elevator Company (hereinafter referred to as appellant) admits that it installed two hoisting cables on No. 2 passenger elevator in September, 1920, but denies that it was ever employed to keep, maintain, and repair said elevators in said Newhouse Hotel; admits that the No. 2 passenger elevator fell March 21, 1922, but denies that there was great or grave or imminent or any danger of said cables parting or breaking in said cones or pulling loose therefrom, and denies that the breaking of said cables or the falling of the elevator was due to any negligence on the part of appellant. Appellant further alleged that the elevator would not have fallen so as to cause injury to the plaintiff had it been properly equipped with proper safety devices.

On behalf of respondent, evidence was adduced tending to prove that the cables had been improperly attached; that the work was done by William N. Clark, an employee of the elevator company, who knew that his work had not been properly done; that the defective installation made the elevator liable to fall at any time, and that the cables parted at the time of the accident because of the defective and negligent manner of attaching them to the cones; that the elevator, when falling, reached a speed of about 350 feet per minute, and that the safety devices would not operate until after a speed of about 490 feet per minute had been attained by the falling elevator; that the defective installation was not discoverable by inspection and was unknown to the defendant hotel company; that the elevator upon which the cables were installed was a Von Emon elevator and no part was of defendant elevator company's make; that when installed the cables and elevator were delivered to and accepted by the hotel company and operated for 18 months thereafter and until the date of the accident, March 21, 1922. Testimony was adduced tending to support the material allegations of the complaint and sufficient to make a prima facie case in favor of plaintiff.

The undisputed evidence establishes that in its work of installing the elevator cables the appellant acted in the capacity of an independent contractor. As argued by counsel for appellant, its liability is therefore to be measured by the obligations of an independent contractor so far as the respondent is concerned. The elevator company being an independent contractor, counsel invoke the well-established rule of law which they state to be:

"An independent contractor is not liable for injuries to third persons, with whom he has no contractual relations, occurring after he has completed his work and turned it over to the owner or person with whom he has contracted, and the same has been accepted by the owner or person with whom the contractor made his contract, even though the injury to the third person resulted from negligence of the independent contractor in carrying out his contract."

The above rule finds support in all the cases cited by counsel, nearly 100 of them, and is approved by all the textwriters. Moll, Ind. Contractors, § 177, p. 291; Wharton, Neg. 368; 14 R. C. L. § 42, p. 107. One of the reasons for the rule is stated in the leading English case, Winterbottom v. Wright, 10 M. & W. 109:

"If we were to hold that the plaintiff could sue in such case there is no point at which actions would stop. The only safe rule is to confine the right to recover to those who enter into the contract. If we go one step beyond that there is no reason why we should not go fifty."

What is stated to be a better reason, in Casey v. Bridge Co., 114 Mo.App. 47, 89 S.W. 330, is that ordinarily in such cases there is found a break in the causal connection between the contractor's negligence and the injury--

"It is the intervening negligence of the proprietor that is the proximate cause and not the original negligence of the contractor. By occupying and resuming possession of the work the owner deprives the contractor of all opportunity to rectify his wrong. Before accepting the work as being in full compliance with the terms of the contract he is presumed to have made a reasonably careful inspection thereof and to know of its defects, and if he takes it in the defective condition he accepts the defects and the negligence that caused them as his own, and thereafter stands forth as their author. When he accepts work that is in a dangerous condition the immediate duty devolves upon him to make it safe, and if he fails to perform this duty, and a third person is injured it is his negligence that is the proximate cause of the injury. His liability may be incurred either from his substitution for the contractor or from his neglect to repair."

As well settled and as potent as the rule itself are certain exceptions, one of which is that the contractor continues liable where the work is turned over by him in a manner so negligently defective as to be imminently dangerous to third persons. Moll, Ind. Contractors, § 228, p. 348; 14 R. C. L. § 42, p. 107; 29 Cyc. 484; 16 A. & E. Ency. L. 209; Wharton, Neg. § 438; 1 Thompson, Neg. § 686.

The decided weight of authority supports the proposition that when an independent contractor has done work on an instrumentality and by his work makes the instrumentality imminently dangerous to those he knew would use it, he remains liable, even after the completion of his work and its acceptance by the contractee, to third parties injured as the result of his negligence if the contractor knew or in view of the peculiar circumstances of the case should have known the dangerous condition by him created, and the contractee had no knowledge of the dangerous condition or defect which was so concealed that reasonable inspection by the contractee would not have discovered it. After citing cases sustaining the exception to the general rule, it is said in Casey v. Bridge Co., supra, at page 64 (89 S.W. 335):

"Applying the principles upon which these exceptions are based that bear upon the case in hand, we are of the opinion that the defendant should not be excused from liability to the plaintiff, even under the supposition that the...