Draper v. Cotting

• Decision Date: 11 September 1918
• Citation: 120 N.E. 365,231 Mass. 51
• Parties: DRAPER v. COTTING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 51

120 N.E. 365

DRAPER

v.COTTING et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 11, 1918.

Exceptions from Superior Court, Suffolk County; Frederic H. Chase, Judge.

Four actions of tort by Lillian A. Draper, John J. Callahan, Charles E. Callahan, and Patrick J. Hartnett, respectively, against Charles E. Cotting and others, for personal injuries, and one action by Edward N. Draper against the same defendants for expenses incurred because of injuries to plaintiff's wife. Verdict for plaintiff in each case, and defendants except. Exceptions overruled.

The defendants requested the court to give the following rulings:

(4) If at the commencement of the tenancy of the tenant the Workingmen's Co-operative Bank, the elevator in question was equipped with the instantaneous type of safety device, the defendants as landlords owed no duty to change that type of safety device;to that extent at least the tenant took the premises as it found them.

(5) If at the commencement of the tenancy of the tenant, the Workingmen's Co-operative Bank, the elevator in question was equipped with the instantaneous type of safety device, and if the jury believe that, even though that type of safety device is properly adjusted, it may work unevenly in the sense that one side catches on the guide rail before the other, the defendants are guilty of no breach of duty in the use of such type of safety.

(6) If at the commencement of the tenancy of the tenant, the Workingmen's Co-operative Bank, the elevator in question was equipped with the instantaneous type of safety device, the defendant landlords owed no duty to change that type of device for another type, as for example, the compression type, even though the jury may believe that the instantaneous type of safety device was unsuitable for an elevator such as was elevator No. 4.

(7) In any event if the jury believe that the elevator in question was installed by a reputable dealer in elevators and when so installed was equipped with such safety devices or other apparatus as required by law, and that if, after such installation, the defendants by a suitable system of inspection exercised reasonable care to keep the elevator in a reasonably safe condition, the defendants are not liable to the plaintiffs.

(9) There being no dispute that, at the commencement of the tenancy of the tenant, the Workingmen's Co-operative Bank, the elevator was equipped with the instantaneous type of safety device, the plaintiffs cannot hold the defendants responsible for any injuries arising out of the ordinary use of such type of device.

(10) If the defendants had installed upon the elevator in question such speed governors and safety devices as are called for by law, no duty existed to furnish any other governors or safety devices.

(11) The defendants owed no duty to furnish any better or safer or other safety device than that required by law, that is, by the elevator regulations framed by the board of elevator regulations.

(12) If the defendants had installed upon the elevator in question such speed governors and safety devices as were called for by the elevator regulations and if the defendants exercised a reasonabledegree of care in seeing that the elevator as thus equipped was kept in repair and suitable condition for safe operation, the defendants discharged their full duty.

(14) If the jury believe that the plaintiffs' accident came about because the safety device operated as it would reasonably be expected to operate, no liability attaches to the defendants.

(15) It is only in case the jury believe that the accident to the plaintiffs happened because the defendants failed to exercise reasonable care in keeping the elevator with its devices as actually installed at the commencement of the tenancy of the tenant, the Workingmen's Co-operative Bank, in the condition in which it then was or appeared to be, that the defendants are liable.

(16) If the jury believe that the safety device was tripped for some reason which could not be discovered by a reasonably careful inspection, no liability attaches for injuries resulting from the operation under such circumstances of the safety device.

(17) The doctrine of res ipsa loquitur has no application to the case at bar.

(18) The plaintiffs may rely upon the doctrine of res ipsa loquitur only if the jury believe that they have made an unsuccessful attempt to prove by direct evidence the precise cause of the accident.

(19) The defendants' duty in respect to the elevator in question is that of due care, to keep it in such condition as it was in or purported to be in at the time of the letting, but they are not bound to change the mode of construction.

(20) If, at the time of the letting, the elevator was equipped with the instantaneous type of safety device, the defendants were not bound to change that mode of construction and substitute some other form of safety device.

(22) If the jury believe that over a course of years from 1901 or 1902 to 1915 the elevator in question had safely carried thousands of passengers, making daily in the vicinity of three hundred safe round trips, the jury are warranted in believing that the defendants have furnished a reasonably safe elevator.

(23) If the jury believe that before the accident to the plaintiffs the elevator had been daily in constant successful operation, without accident or any interruption which would reasonably cause apprehension of any imperfection in device or safeguards against accident, the jury are warranted in believing that the defendants have furnished a reasonably safe elevator.

Romney Spring, of Boston, for plaintiffs.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for defendants.

BRALEY, J.

[1] The first four plaintiffs, to whom reference hereafter will be made as the plaintiffs, sue for personal injuries suffered while riding in a passenger elevator owned and operated by the defendants, while the fifth action is brought by the husband of Mrs. Draper for expenses incurred because of the harm to his wife. The following material facts are not in controversy. The rooms in the defendants' building consisting of eleven stories were let to tenants for use as offices and shops to which access could be had by passenger elevators over which as well as over the connecting stairways the defendants retained exclusive control. On the day of the accident the plaintiffs were in the building doing business with a co-operative bank, a tenant whose office was on the tenth floor. The business being completed, they entered the elevator for the purposes of departing from the premises, and the car was started by the operator. But instead of descending in the ordinary way it shot downward with ‘great violence’ inclining to one side, causing the car to be substantially wrecked when it came to a stop at a point approximately level with the third floor. It had been installed upon completion of the building and used for some twelve years or more, but no inspection ever had been made to ascertain whether the instantaneous safety device which was designed to act simultaneously with equal restraining force on the rails on each side of the well remained in an effective working condition, so that the car, even when descending at a normal maximum speed of five hundred feet a minute, could be sufficiently and instantly checked as to insure the safety of passengers. It is stated that whether the safety device was in proper working order could be ascertained only by an examination of the entire apparatus, and evidence having been offered from which it could be found that the elevator would not have fallen as described unless the appliances therewith connected had been ‘out of order in respects which could have been discovered by reasonably careful inspection,’ the plaintiffs were entitled to go to the jury. Waters v. Cotting, 227 Mass. 405, 116 N. E. 824;Finnegan v. Winslow Skate Mfg. Co., 189 Mass. 580, 582, 76 N. E. 192;Moylon v. D. S. McDonald Co., 188 Mass. 499, 74 N. E. 929. The first request for a directed verdict was rightly denied. The defendants also excepted to the admission of evidence from which the jury could find that the safety device was an obsolete and improper appliance, because an improved compression safety device had been in common use for quite a period before the accident by the operation of which the car if so equipped would have come to a gradual, instead of a precipitate, stop, and the accident avoided, and asked for rulings variously phrased, that if at the date of the letting the elevator had a safety device they were under no obligation to change the mode of construction, or to substitute or provide some other or better form of mechanism even if the substitution might have caused the car to be more stable, more easily controlled, and uniformly more safe.

[2] We consider this evidence as relating to the time when the bank became a tenant, under whose rights the plaintiffs were lawfully on the elevator, and the duty the defendants owed to the tenant measures the duty they owed to the plaintiffs. Baum v. Ahlborn, 210 Mass. 336, 96 N. E. 671;Follins v. Dill, 229 Mass. 321, 118 N. E. 644;Marwedel v. Cook, 154 Mass. 235, 236, 28 N. E. 140;Mikkanen v. Safety Fund National Bank, 222 Mass. 150, 153, 109 N. E. 889. It is not contended that the condition of the elevator is referred to in the lease, and there is evidence warranting a finding that the type of safety device attached to the elevator could ‘only be discovered by a careful inspection of the mechanism at the top of the elevator and in the bottom of the car, made by a person familiar with the construction and operation of elevators.’

[3] If the device was defective, it also could be found to be a hidden defect for which the defendants are responsible as defined in Andrews v. Williamson, 193 Mass. 92, 78 N. E. 737,118 Am. St. Rep. 452. The defendants under the lease were charged with the duty...