Guensch v. Trustees of Third Presbyterian Congregation in Newark

• Decision Date: 16 May 1932
• Docket Number: Nos. 1, 56.,s. 1, 56.
• Citation: 160 A. 507
• Parties: GUENSCH v. TRUSTEES OF THIRD PRESBYTERIAN CONGREGATION IN NEWARK et al.
• Court: New Jersey Supreme Court

160 A. 507

GUENSCH

v. TRUSTEES OF THIRD PRESBYTERIAN

CONGREGATION IN NEWARK et al.

Nos. 1, 56.

Court of Errors and Appeals of New Jersey.

May 16, 1932.

Syllabus by the Court.+++

1. The person delivering merchandise to the premises of one who has ordered the same so delivered comes as an invitee.

2. The landlord having assumed the duty of maintaining an elevator for the common use of two of the tenants in its building was under a duty to exercise reasonable care to maintain the elevator in proper working order.

3. The tenant who invites the use of an instrumentality which he could, by the exercise of reasonable care, have discovered to be defective, cannot escape liability therefor because of the landlord's duty with respect thereto.

Appeal from Supreme Court, Essex Circuit.

Action by Oscar Guensch against the Trustees of the Third Presbyterian Congregation in Newark and another. Judgment for the plaintiff, and the defendants appeal.

Affirmed.

Charles Stockdell Gray, of Newark, for appellants trustees of the Third Presbyterian Congregation In Newark.

Cohen & Klein, of Newark, for appellant P. De Nicholas, Inc.

Harley, Cox & Walburg and John J. Francis, all of Newark, for appellee.

BODINE, J.

Oscar Guensch, the plaintiff, recovered a verdict of $17,000 for personal injuries sustained January 10, 1929, at Nos. 913-915 Broad street, Newark. The property was owned by the trustees of the Third Presbyterian Congregation, who had leased part of the premises occupied by the Rialto Restaurant to the Southern Candy Company, who sublet to P. De Nicholas, Inc., the other defendant. There was a sidewalk freight elevator which was used for the purpose of carrying objects to and from the cellar which was used, not only by the restaurant, but also by the Rialto Theatre, another tenant of the church congregation.

Guensch was employed by M. Mark & Son, dealers in delicatessen supplies, and was delivering merchandise to P. De Nicholas, Inc. He had obtained a check for the goods from Mr. De Nicholas pursuant to instructions from his employer. He was then told by De Nicholas, as he had been many times before, to go outside and open the iron sidewalk elevator doors when the elevator was sent up for the merchandise. Plaintiff presently opened one door and laid it on the sidewalk. The elevator platform was level with the sidewalk. He stepped on it and started to raise the other door when the elevator dropped down and he suffered the injuries, both serious and permanent, of which he complained.

The elevator was about fifteen years old and was hand-operated. The platform was nearly five feet square, and there were the customary cables, gears, grooved drums, and brakes designed for the proper operation thereof. The elevator travels a distance of nine or ten feet.

The proofs show that the elevator platform, as observed immediately after the accident by a number of witnesses, had dropped halfway down, was at an angle of 45 degrees, and one of the cables was off the drum. The Otis elevator people were immediately sent for to make repairs, and their employee, when he arrived the next day, found the elevator platform in the same condition observed by the other witnesses, and also noticed that both cables were off the drums, which were not provided with guards.

An expert witness testified that slack cables caused the accident and can exist for a long time and are observable by the operator of such an elevator and are due to running the elevator below the proper landing stage, causing the cables to ultimately work off the drums when weight is applied.

On cross-examination, this witness testified:

"Q. What caused it to drop, in your opinion? A. The cables being crossed in the position to come off the drum.

"Q. Would they come off the drum? A. They would.

"Q. Then what happened to the elevator? The elevator came down, didn't it, and took up and tightened that cable? A. It tightened the cable around the shaft of the drums.

"Q. Then the cable would be when it got part way down, taut? A. Exactly.

"Q. And there wouldn't be three or five turns off the drum, would there? A. Yes, they would be wrapped around the shaft."

This seems to have been the case.

De Nicholas testified that the elevator had been hard to handle for some time, and he had complained to the church people about it.

The lease provides as follows: "The Party of the second part are to have the use of the sidewalk lift in common with the tenant to the South of the premises hereby rented."

The rules and regulations thereto attached provided as follows: "The sidewalk, halls, passageways, elevators and stairways shall not be obstructed by any of the tenants or used by them for any other purpose than ingress and egress from and to their respective apartments and for signs on boards erected for that purpose."

The defendant, the trustees of the Third Presbyterian Church argues but two grounds for reversal; namely, that there should have been a nonsuit or a directed verdict. The learned trial judge first submitted to the jury the question of whether the plaintiff was an invitee. We think that was proper under the proofs adduced. De Nicholas denied that he told plaintiff to step on the elevator or to take the goods to the cellar, but, since there was positive conflicting testimony otherwise, the question was one for the jury and not for the court. "A servant who enters on the premises on the business of his master, in...