Durham v. Warner Elevator Mfg. Co., 34790

• Citation: 139 N.E.2d 10,166 Ohio St. 31
• Decision Date: 19 December 1956
• Docket Number: No. 34790,34790
• Parties: , 1 O.O.2d 181 DURHAM, Appellant, v. The WARNER ELEVATOR MFG. CO., Appellee.
• Court: United States State Supreme Court of Ohio

Page 31

166 Ohio St. 31

139 N.E.2d 10, 1 O.O.2d 181

DURHAM, Appellant, v. The WARNER ELEVATOR MFG. CO., Appellee.

No. 34790.

Supreme Court of Ohio.

Dec. 19, 1956.

Syllabus by the Court.

1. In an action for damages grounded on negligence and tried before the court and a jury, a motion to direct a verdict for one of the parties requires that the evidence be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in disposing of such motion.

2. Where one, under a written contract, undertakes to service and examine the mechanical equipment of another and make a report on the condition thereof, and the equipment is of such a nature as to make it reasonably certain that life and limb will be endangered if such work is negligently performed, he is chargeable with the duty of performing the work in a reasonably proper and efficient manner, and if such duty is negligently or carelessly performed whereby injury occurs to a blameless person, not a party to the contract and lawfully using such equipment, such injured person has a right of action directly against the offending contractor. Liability in such instance is not based upon any contractual relation between the person injured and the offending contractor, but upon the failure of such contractor to exercise due care in the performance of his assumed obligations.

3. In a action for damages for such injury, upon a motion to direct a verdict for the defendant at the close of plaintiff's evidence in chief, the proper test to be applied is whether there is substantial evidence that defendant was negligent in performing or in failing to perform his assumed duties of servicing and examining the equipment and whether such negligence, if any, was a proximate cause of plaintiff's injury. If plaintiff by his evidence meets such test, it is prejudicial error to direct a verdict in defendant's favor.

This case presents the question of whether a verdict was properly directed against William T. Durham, plaintiff, in favor of The Warner Elevator Manufacturing Company, defendant, at the close of plaintiff's evidence in chief.

The La Normandie Maisonette conducts a restaurant in premises located on Walnut Street in the city of Cincinnati. About the year 1928, a Warner electric push-button freight elevator was installed in such premises, operating between the so-called first or street floor and the subbasement, a distance of some 23 feet.

Plaintiff is a long-time employee of the restaurant and, before receiving the injuries hereinafter mentioned, performed duties as porter and dish and pot washer. Shortly before midnight on September 24, 1953, he was transporting on the elevator several cans of garbage from the subbasement and basement to the first floor for delivery to a garbage collector. The elevator reached the first floor and stopped and then suddenly and without warning dropped all the way to the bottom, causing serious physical injuries to the plaintiff.

Plaintiff brought his action for damages against defendant in the Court of Common Pleas of Hamilton County, predicated upon defendant's alleged negligence and carelessness in failing to fulfill its obligation under a certain written 'service contract' entered into on April 8, 1953, between the La Normandie Maisonette and the defendant.

Such service contract, the existence and terms of which are not in dispute, reads in its pertinent parts as follows:

'We agree to furnish Warner service on one (1) Warner freight elevator located at La Normandie Maisonette, 505 Walnut Street, Cincinnati, Ohio, from April 6, 1953, and thereafter until this agreement is terminated by either party on thirty (30) days notice, in writing.

'For the sum twenty-one and 20/100 * * * dollars ($21.20) per month payable monthly.

'* * *

'We are to furnish cleaning solvents, wiping cloths, and the necessary oil and grease for the proper lubrication of this elevator.

'This service to consist of weekly examination of the elevator excepting signal devices, including oiling and cleaning machine, motor and controller, greasing or oiling bearings and guides, and making necessary minor adjustments at the time of regular examination * * *.

'This agreement does not include any labor or material for making repairs or alterations to any part of the elevator equipment or enclosures or furnishing new cables.

'This agreement is subject to terms and conditions printed on the back hereof, which are expressly made a part of this agreement.'

The terms and conditions on the back of the instrument recite:

'It is expressly understood, in consideration of our performance of the service enumerated at the price stated, that nothing in this agreement shall be construed to mean that The Warner Elevator Mfg. Company assumes any liability on account of accidents to persons or property, except those directly due to the negligent acts or omissions of The Warner Elevator Mfg. Company or its employees * * *. The Warner Elevator Mfg. Company shall not be held responsible or liable for any loss, damage * * * or by any cause beyond its reasonable control, whether or not the same is herein specified * * *. No work, service or liability on the part of The Warner Elevator Mfg. Company other than that specifically mentioned herein, is included or intended.'

Under date of April 6, 1953, defendant wrote a letter addressed to and received by the restaurant, reading as follows:

'Thank you very kindly for the order given us this afternoon * * * to inspect and service your Warner freight elevator under the Warner weekly service plan.

'This order has been entered and the initial inspection under this plan will be made tomorrow.

'Formal contract is enclosed.

'The service covered by this contract consists of a weekly examination of the entire elevator. During this examination the engine, motor, controller, and brake are thoroughly cleaned, oiled, and greased. Burnt and pitted contacts on the controller are dressed, the brake adjusted if necessary, and the floor stops set if required. The various adjustments between the motor, controller, brake, and control mechanism are synchronized. The guides are oiled or greased as best suited to the purpose.

'* * * 'On completion of each examination a brief but comprehensive report is left outlining the general condition of the elevator and calling to your attention anything you should know concerning its condition and/or operation.

'The mechanics assigned to this class of work are fellows who have gone through the school of experience in elevator design, manufacture, construction, repair, and maintenance, and do develop an uncanny ability to detect maladjustments and correct them before they reach damaging proportions. In this way many extensive and expensive repairs are forestalled and a lot of aggravating shutdowns eliminated entirely.

'You will note that the contract submitted can be cancelled by either party on 30 days notice in writing. This clause places us on probation all the time. If at any time the service is not everything that we claim for it or everything that you expect of it, you may exercise your privilege. A trial is all that we ask * * *.

'Sign one copy of the contract and let us prove to you that through this service we can keep your elevator in the safest and most efficient condition at a minimum maintenance expense.'

Written inspection reports, as described in defendant's letter, were prepared and delivered to the restaurant. Several of them specify certain needed repairs which were made, presumably at the restaurant's expense. The last report prepared and delivered the day before plaintiff's injury is as follows:

'The Warner Elevator Mfg. Co.

'Inspector's Report

'Date, September 23, 1953.

'Name, La Normandie Restaurant.

'We have this day examined your elevators, composed of 1 freight * * * (in accordance with terms of our contract, and the conditions on back hereof) and found same to be in good condition excepting as stated below:

'No exceptions.

'Dick Schlaechter, Inspector

'Maisonette La Normandie,

Proprietor.'

On the trial of the action, plaintiff presented as his witness the supervisor of elevator inspection for the city of Cincinnati who examined the elevator on the morning of September 25. He found that the cable raising and lowering the elevator had come off the supporting sheave or wheel 'that carries the cable that carries the elevator.' He testified further that 'we found that the safety jaws on the elevator were worn badly and were not functioning or could not possibly function properly because in a free fall those jaws should have grabbed the rail and stopped the elevator'; that, in the event the cable jumped the sheave, the safety jaws would hold the elevator; and that 'we believe they (the safety jaws) were worn too bad to stop the elevator in its fall.'

Another of plaintiff's witnesses, also a porter at the restaurant, testified that on the afternoon of the night plaintiff was injured he (the witness) was using the elevator when 'it went down,' 'it didn't stop at the floor, about that far below the floor.' This witness immediately notified the restaurant proprietor of what had happened. The defendant was then contacted and sent a workman who worked on the elevator for about an hour. The witness testified further:

'Q. After he finished the work, did he say anything to you? A. I asked him if the elevator was all right. He said, 'Yes, sir,' that it was O.K., and I came down on it.'

When plaintiff rested his case in chief, counsel for defendant made the following motion orally:

'At this time, if Your Honor please, I wish to move the court to withdraw the consideration of...