Hall v. Murdock

• Decision Date: 14 September 1897
• Citation: 72 N.W. 150,114 Mich. 233
• Court: Michigan Supreme Court
• Parties: HALL v. MURDOCK ET AL.

72 N.W. 150

114 Mich. 233

HALL v. MURDOCK ET AL.

Supreme Court of Michigan

September 14, 1897

Error to circuit court, Calhoun county, Clement Smith, Judge.

Action by Charles E. Hall against Gilson E. Murdock and another. There was a judgment for plaintiff, and defendants bring error. Reversed.

It is error for counsel on cross-examination of medical experts to read medical works to the jury.

Tort for damages resulting from the fall of an elevator upon which plaintiff was riding. The elevator was in an annex at the rear of a block, running from the basement to the third floor. The first story was occupied as stores; the second as living rooms, some of which were occupied by the defendants, who were husband and wife; the third story was a large room used for the storing of goods and furniture. The claim of the plaintiff is that the defendant Sarah owned the title in fee, and that her husband (defendant Gilson) was her agent in the management and control of the building. Mrs Murdock claimed that she had nothing to do with the construction of this elevator, and that her husband owned a life estate in the block, and rented and controlled it. Plaintiff had made a contract with the defendant Gilson for the storage of some of his household furniture in the third story, the consideration depending upon the amount of floor room occupied. The elevator was constructed and designed for the carrying of freight. There was nothing in its construction or appearance to indicate that it was intended for the conveyance of passengers. It was supplied with a safety device consisting of a large half-elliptic spring of steel, made of four plates, fastened on the under side of the cross-beam, and inclosed by a clamp attached to the cable. The lower end of the clamp was fastened around this spring in such a manner as to cause the weight of the car and its contents, when suspended, to rest on this spring, and bend it up to the beam. Its construction was such that, if the cable broke, the pressure on the spring would be released and the spring rebound to its half-elliptic form, and in so doing it moved a lever which set the safety brakes. Two grounds of negligence were submitted to the jury: First, that the cable had become old and worn, and for that reason broke; and second, that the safety device used was not such as experience had shown to be the most effective. The theory of the defense was that the cable parted in consequence of a piece of timber which, in some way not accounted for, got between the cable and sheave wheel, on which the cable parted. Mr. Murdock, at the time the contract for storage was made, directed plaintiff to deliver the goods at the middle south door of the annex by setting them into the annex from the alley. Mr. Murdock was not present when the goods were delivered, which was Saturday. Plaintiff and his drayman, upon their own motion, elevated one dray load of goods to the third story. On the following Monday plaintiff went to the block, to see if his goods had been placed. He was informed that they had not been. His own testimony was to the effect that Mr. Murdock told him that he was lame, and could not handle them, and asked plaintiff to assist him; that plaintiff did so, and, at the direction of Mr. Murdock, placed the goods upon the car; that Mr. Murdock then invited plaintiff to go up on the elevator which he did. Mr. Murdock was also upon the elevator, and started it, and, after going about 12 feet, the cable parted, and the elevator fell to the basement. Plaintiff recovered verdict and judgment.

John C. Patterson (H. E. Winsor, of counsel), for appellants.

Lyman B. Trumbull and Charles A. Blair, for appellee.

GRANT J. (after stating the facts).

1. Defendant Sarah contends that there was no evidence of negligence upon her part, for the reason that Mr. Murdock had a life interest in the premises; that he put in this elevator, received the rents, and controlled the property. The plaintiff introduced evidence to the effect that leases had been made out in her name, and signed by her. The plaintiff called Mrs. Murdock as a witness, and she testified that after the property "was deeded to me, he (Mr. Murdock) was to have charge of the business. He was to collect rents. He was not to have the rents." Upon cross-examination by her counsel she testified that she was mistaken when she testified as above, and that the rents belonged to her husband. Under this testimony it was not error to leave the question of her liability to the jury, which the court did under proper instructions. She was a party in interest, and her contradictory statements were for the jury, not the court, to consider.

2. It is insisted that there was no evidence of negligence on the part of the defendants. We think there was evidence sufficient to submit the question to the jury whether the cable had become old and worn, and parted in consequence. The mere fact that it broke, under the decisions of this court, was no evidence of negligence. The cable had been in use when purchased by Mr. Murdock, and had been used by him about two years. One witness saw a piece of the cable as it was when purchased by Mr. Murdock, and testified that it was considerably worn. It is true, he did not testify that it was, in his opinion, sufficiently worn to be dangerous; but its condition in this respect was proper for the consideration of the jury in connection with the other testimony. Other witnesses also testified to statements made by Mr. Murdock to the effect that the cable was "worn out or played out"; that some of his tenants had used it bad, and pretty much spoiled it, and that he had got to get a new one. Under evidence of this character we think the question was properly submitted to the jury.

3. A more doubtful question is presented as to negligence in the use of this safety device. The...