Ellis v. Waldron

• Citation: 33 A. 869,19 R.I. 369
• Parties: ELLIS v. WALDRON et al.
• Decision Date: 14 February 1896
• Court: United States State Supreme Court of Rhode Island

33 A. 869

19 R.I. 369

ELLIS

v. WALDRON et al.

Supreme Court of Rhode Island.

Feb. 14, 1896.

Action by Harry B. Ellis against Nathan B. Waldron and others. On demurrer to the declaration. Overruled.

Littlefield, Stiness & Stiness, for plaintiff.

Hayes & Hayes, for defendants.

TILLINGHAST, J. The defendants have demurred to the plaintiff's declaration in this case on the grounds: (1) That it does not appear by said declaration in what way the elevator in question was defective, unsuitable, and unsafe, so that the defendants should be put upon their inquiry; (2) that it does not appear by said declaration what duty said defendants owned to the plaintiff; and (3) that the plaintiff does not set forth specifically what he was employed to do, nor the particular work he was engaged in at the time of receiving the injuries complained of, but merely an inference or conclusion of law, viz. that he was rightfully and lawfully upon said elevator for the purpose of raising and lowering goods of said Greene, Anthony & Co. from the third floor of said building.

The first contention of defendants' counsel in support of his demurrer is that, in order to allege negligence, the plaintiff must set out specifically in his declaration what the defect was or in what way the elevator was unsuitable or unsafe. This contention is clearly in accordance with the general rule in cases of negligence. Smith v. Tripp, 13 R. I. 152; Wilson v. Railroad Co., Index, NN, 106, 29 Atl. 258. But this rule is not without exceptions, and we think this case is embraced in that class of exceptions of which Cox v. Gas Co., 17 R. I. 199, 21 Atl. 344, is an example. In that case it was substantially held that, where a servant is injured in the course of his employment, in consequence of some defect in a machine or instrument not under his control, which defect he is unable to discover, the rules of pleading do not require him to specify such defect. In other words, that the rules of pleading are not so rigid as to be unreasonable. See, also, Parker v. Steamboat Co., 17 R. I. 376, 22 Atl. 284 and 23 Atl. 102. In the case at bar the declaration shows that the defendants had granted to their lessees. Greene, Anthony & Co., as a part of their leasehold interest in the premises where the accident happened, the use of the elevator in question for the purpose of raising and lowering goods and wares in the course of their business. This grant, however, did not have the effect to put the elevator under the control of the plaintiff, who was a servant and employe of said Greene, Anthony & Co., so far as the construction, condition, or state of repair of said elevator was concerned. In other words, it was only under his control in so far as the using of the same in connection with the discharge of his duties to his employers was concerned. It did not become his duty to examine or inspect the elevator in order to ascertain for himself whether it was suitable and safe for the uses assigned to it; but, in the absence of obvious defects, of which of course he was bound to take notice, he had the right to presume that it was safe and free from defects. He alleges that he was in the exercise of due care; that he had no knowledge of the defective and unsafe condition of the elevator, its attachments and apparatus, but that it was defective and unsafe, and that this fact was known...