Gibson v. International Trust Co.
| Decision Date | 19 October 1900 |
| Citation | 177 Mass. 100,58 N.E. 278 |
| Parties | GIBSON v. INTERNATIONAL TRUST CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. L. Whipple and H. W. Ogden, for plaintiff.
R. M Morse, John Lowell, and John Duff, for defendant.
The plaintiff was injured while riding in an elevator car in the defendant's building. The ground upon which the plaintiff seeks to recover is that, after the elevator car had stopped at the first floor to enable the plaintiff to alight, the defendant so carelessly and negligently operated and controlled the car that, while the plaintiff was about to step from the car onto said floor, the car suddenly started downwards, bearing the plaintiff along with it, and one of the plaintiff's legs was drawn between the shaft and the car, and was injured. The plaintiff testified that the elevator appeared to be of modern design and in first-class condition, and that Hersey, the person who ran the elevator was an ordinarily bright and intelligent young man, rather above the average in that respect; that there had been a movable stool in the elevator for some time, and that he understood it was there to enable the elevator boy or attendant to sit down; that the elevator was operated by a lever, which, when it was drawn towards the operator, as he usually stood, moved the elevator downward that when it was pushed from him it started the elevator upward; and that when it was right in the middle it stopped the elevator, and it was so arranged that it locked there if the operator's hand was removed from the handle. There were in the elevator at the time of the accident four persons. The plaintiff was nearest the door. Behind him was a friend of his. On the further side of the elevator was Hersey, who ran the elevator, and behind him was the janitor of the building, one Bagley. The plaintiff further testified that he saw Hersey push the lever to stop the car, and open the door; that at the same time he saw Bagley take hold of the stool, and move it back towards the corner; that he moved it a few inches back; that Hersey was standing with his back to Bagley, and the stool was between them; that, so far as he could judge, Hersey did not know that the stool had been moved when he attempted to sit down, after stopping the elevator and opening the door; that Hersey's left hand was on the lever, when he was forced back, by losing his support behind, or his seat; and that he had his hand on the lever, and that carried the lever with him. Lowe testified that as soon as the elevator boy opened the door he undertook to sit down, and missed his seat; that the stool and the boy went together; that he threw up his arms to catch himself, but caught the apparatus that moved the elevator, and all went down a certain distance. Hersey, who was called for the defendant, testified that when he reached the first floor he stopped the car, and went to open the door, and then went to sit down, the same as he had been in the habit of doing; that, the stool having been removed, he lost his balance, and as he fell back he grasped the lever, which was the only resort he had. He further described the handle of the lever as having a supplementary handle underneath, which, when taken hold of, would raise the piece of steel out of the slot, and would allow the car to be moved; that when the car reached the first floor he put the piece of steel in the slot; and that when he fell he must have seized the handle from underneath, and released the steel.
Whether we take the evidence of the plaintiff's witnesses alone, or in connection with that of Hersey, we are of opinion that there is no evidence of negligence on the part of Hersey, and that the request for an instruction to this effect should have been granted. The only ground upon which the plaintiff relies to show negligence on the part of Hersey is that he did not look behind him before attempting to sit down. But he did not know that the stool had been moved, and had no reason to suppose that this was the case. He attempted to sit down in the customary way, and lost his balance, and clutched for something to support him. His action was entirely an involuntary one. To say that, under such circumstances, there was evidence of his negligence would be going too far.
We are of opinion, also, that the jury should have been instructed as requested, that there was no evidence that Bagley was, at the time of the accident, employed in the operation of the elevator. The evidence was that he was the janitor of the building; that he had gone to the eighth floor for some tools, and was returning, as a passenger on the elevator, when the accident happened. Bagley, in moving the stool, did not act as the servant or agent of the defendant, and the defendant is not liable for his act in...
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