Gibson v. Leonard

• Citation: 143 Ill. 182,32 N.E. 182
• Parties: GIBSON v. LEONARD.
• Decision Date: 31 October 1892
• Court: Supreme Court of Illinois

143 Ill. 182

32 N.E. 182

GIBSON

v.LEONARD.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Appeal from appellate court, first district.

Action on the case by Freeborn Gibson against James Leonard and Louis S. Sues to recover damages for personal injuries. Before the trial, defendant Sues died, and suit was dismissed as to him. The court instructed a verdict for the defendant Leonard, which was affirmed by the appellate court. Plaintiff appeals. Affirmed.

Brandt & Hoffmann and J. S. Kennard, Jr., for appellant.

S. L. Boyce, Walker & Eddy, and H. H. Martin, for appellee.

BAKER, J.

James Leonard, appellee, was owner of the building on West Lake street, in the city of Chicago, which was numbered 47 and 49. It was constructed of brick, was four stories and a basement high, and was occupied by various tenants for business purposes. The main floor and basement were leased to one Sues, who carried on therein a wholesale liquor business. The lease to said Sues was dated May 1, 1888, and at the time of the fire herein mentioned the premises and the hoist or elevator thereon were in substantially the same condition that they were in at the date of the demise. Said elevator ran only from the main floor to the basement, and it consisted of an uninclosed floor or platform about six feet long and four feet wide, with an upright timber at each end and a crossbeam at the top, uniting them, and to the center of the crossbeam a rope was attached. It is not necessary to state anything further in regard to the construction of the elevator and the mechanism connected with it, except to remark that there was a counterweight, which consisted of a piece of cast iron 3 feet long, some 14 or 16 inches wide, and 3 inches thick, and a rope by which said counterweight was suspended and moved up and down. Shortly before midnight of May 28, 1888, a fire broke out in the upper stories of the building in question. Freeborn Gibson, the appellant herein, was a member of the fire insurance patrol. The company to which he belonged responded to the alarm, but when it got to the scene of the fire the engines were already at work, throwing water. The patrol forced open the door of the main floor, and spread waterproof tarpaulins over the goods stored there. There was an outside pair of stairs that led to the basement, but the door at the foot of the stairs and leading into the basement was locked, and also braced on the inside and barricaded with goods. There were no stairs inside the building from the main floor to the basement, and the only inside communication from the one to the other was the elevator or hoist. The platform of the elevator was on the basement floor, and two or three barrels of whisky were standing on it. When the goods on the main floor had been covered with tarpaulins, two of the patrol jumped from the main floor to the heads of the barrels, and then spread a few tarpaulins in the basement. In the mean time the other members of the patrol were sweeping water from the main floor. By the direction of the superintendent of the patrol the two men in the basement then rolled the barrels of whisky from the elevator, and when this was done they were raised with the elevator to the main floor by the superintendent. Shortly afterwards the superintendent ordered six of the patrol to go to the basement, and when they got on the elevator he proceeded to let them down by means of certain ropes forming part of the mechanism. When the elevator was within a very short distance of the basement floor the rope which held the counterweight broke at a distance of about 15 inches above said weight, and the weight became detached from the part up and down which it traveled, and it fell a distance of about 16 feet to the bottom of the basement. Gibson, the appellant, was one of the men on the elevator, and the counterweight fell on one of his legs, and drove it through the floor of the elevator, and so injured it as that it had to be amputated above the knee. It is charged in the declaration that the counterweight was insecurely fastened in grooves which were insufficient for the purpose, and that it was in a highly unsafe and dangerous condition without any box or cover around it to prevent it from injuring persons in or about the elevator, when it was easily practicable to have covered, boxed, or guarded it; and it is also charged that the rope by which the counterweight was suspended and moved up and down was of insufficient size and strength, and old and rotten, and of insufficient strength to hold the weight, and highly dangerous to persons using, operating, or about the elevator.

The fundamental inquiry in this case is whether or not appellee owed a duty to appellant to so construct, keep, and maintain the elevator or hoisting apparatus as that it should be a safe means for his transportation from one story of the building to another? Actionable negligence, or negligence which constitutes a good cause of action, grows out of a want of ordinary case and skill in respect to a person to whom the defendant is under an obligation or duty to use ordinary care and skill. The owner of land and of buildings assumes no duty to one who is on his premises by permission only as a mere licensee, except that he will refrain from willful or affirmative acts which are injurious. As was said in Sweeny v. Railroad Co., 10 Allen, 368: ‘A licensee, who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils.’ When, at the time of the fire, the members of the fire patrol forced open the door, and entered the main floor and basement of the building, they were not trespassers; nor did they enter the premises by virtue of a license, either express or implied, from either appellee, the owner of the building, or Sues, his tenant. The facts that the premises were closed for the night, that the doors were all locked and barred, that no ingress was possible without using force and violence and breaking the doors, and that the lawful owners and occupants were all absent, and had no knowledge of either the fire or the proposed entry, and all the other surrounding circumstances, preclude any theory of license from the owner or tenant. A license to enter upon the land and premises of another is not always based on the permission of the owner; it is sometimes given by the law. In Cooley on Torts (page 313) it is said: ‘A third class of licenses comprehends those cases in which the law gives permission to enter a man's premises. This permission has no necessary connection with the owner's interest, and is always given on public grounds. An instance is where a fire breaks out in a city. Here the public authorities, and even private individuals, may enter upon adjacent premises, as they may find it necessary or convenient, in their efforts to extinguish or to arrest the spread of the flames.’ In Proctor v. Adams, 113 Mass. 376. GRAY, C. J., said: ‘In such a case, though they had no permission from the plaintiff or any other person, they had an implied license by law to enter on the beach to save the property. It is a very ancient rule of the common law that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire, or any like danger is not a trespass.’ So appellant, when he entered the building, was, by the rules of the common law, a mere naked licensee, under a license given by the law itself in no way emanating from appellee, and by virtue of which he would have had a right of entry, even in the teeth of an express prohibition on the part of appellee. It is the well-setted doctrine that a mere naked license or permission to enter premises does not impose an obligation on the owner or person in possession to provide against the dangers of accident; and it surely cannot detract from the applicability of the rule that the license or permission has its origin in a source other than such owner or person in possession. It is provided in section 1 of chapter 142 of the Revised Statutes that boards of upderwriters shall have power to provide a patrol of men and a competent person to act as superintendent, to discover and prevent fires, with suitable apparatus, to save and preserve property or life at and after a fire; and that, the better to enable them so to act with promptness and efficiency, full power is given such superintendent and such patrol to enter any building on fire, or which may be exposed to or in danger of taking fire from other burning buildings, subject to the control of the fire marshal of the city, and...