Hall v. Poole

• Decision Date: 05 December 1901
• Citation: 50 A. 703,94 Md. 171
• Parties: HALL et al. v. POOLE.
• Court: Maryland Court of Appeals

50 A. 703

94 Md. 171

HALL et al. v. POOLE.

Court of Appeals of Maryland

December 5, 1901

Appeal from superior court of Baltimore city; John J. Dobler, Judge.

Action by Edwin L. Poole against Hall, Headington & Co. From a judgment for plaintiff, defendants appeal. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, and SCHMUCKER, JJ.

William L. Marbury, George Weems Williams, and Carroll T. Bond, for appellants.

Wm. J O'Brien, Jr., and Tatlow Jackson, for appellee.

FOWLER J.

Edwin L. Poole, the plaintiff below, sued Hall, Headington & Co. in the superior court of Baltimore city to recover damages for injuries sustained by him while repairing the electrical appliances used in connection with the signal bell in their elevator. The plaintiff recovered a judgment, and the defendants have appealed.

During the trial several exceptions were taken to the admission of testimony, and at the conclusion of the evidence the plaintiff offered 8 and the defendants 14 prayers. A statement of facts will be necessary to present the one question which we think controls the case. The defendants having learned that the bell in their elevator was out of order, sent a message to the firm of J. Frank Eline & Co. who were engaged in the business of general electrical installation and repairs, to send some one to repair the bells. In compliance with the request, the plaintiff was sent by Eline & Co. He had been in their employ for a number of years, and was paid by them for the work he did. It appears from his testimony that he was sent to make the repairs for the defendants, and for that purpose entered the building occupied by them, and went directly to the elevator. When he arrived there, he proceeded to make the necessary investigation to ascertain where the trouble was located. Having examined the wires, he concluded that it would be necessary also to examine the batteries, which were placed in the cellar. He says: "I told him [the elevator boy] to carry me to the cellar, which he did, and I got out, and I told him: 'You go up. I am going underneath the elevator to do some repair work; but don't you come down until I call you.' And I went underneath the elevator, and renewed the batteries. *** After renewing the batteries, I pressed the button, and I could hear the bell ring, but not so strong as it should be." He concluded after the experiment that he needed some new material to make the batteries stronger. He therefore told the elevator boy that he would go to the place of Eline & Co. to get what was necessary. When he returned, he entered the defendants' place of business from Fayette street, through a side door. He rang the elevator bell, and the boy came down with the car, and both descended in the elevator to the cellar. The plaintiff then said to the boy, " 'I have the stuff now to finish the work;' and I got off the elevator, and I told him: 'You go up now, but, mind you, don't come down until I call you. I am going under to finish this work.' Then he turned around to me, and says, 'Can I use the elevator as far as the first floor?' I says 'Yes; but mind, don't you come below the first floor. Don't you come below that,'--and he said, 'All right.' " After this conversation the plaintiff started to work on the batteries. While he was working, the elevator was running to one or more of the upper floors. While the plaintiff was engaged in this work in the shaft directly under the elevator, it struck him. The witness Brown, the elevator boy, testified that he was employed by the defendants to run the freight and passenger elevator in the rear of the building. This is the only testimony in reference to the duties he was charged with. He further testified as follows: "I took him [the plaintiff] to the basement, and he looked at the batteries; and I told him there I had some work to do, and he told me not to come down below the first floor until he notified me; and I made a trip or two, and did not go downstairs until he notified me. He came up on the first floor, and told me that he was going out to get some material for the batteries, and he said he would notify me, when he came back, to run the elevator all the way down to the cellar. I made three trips while he was out. *** The next call I had was on the top floor, and came down on the elevator, and that is the first information I had that Mr. Poole [the plaintiff] had returned when I heard him holler." "I had no notice he had returned to the building at all." It appears by the uncontradicted evidence in the case that the plaintiff made with the elevator boy alone the arrangement to use the bottom of the shaft as a place to work. The defendants had no notice of it. The defendants' case rests upon three propositions: First, that the plaintiff and the elevator boy were co-employés or fellow servants of the defendants; second, that, if this be not so, yet the elevator boy was acting outside the scope of his employment and authority when he undertook to run the elevator so as to protect the plaintiff from danger in the perilous position in which he placed himself; and, thirdly, that the plaintiff was the author of the arrangement by which the accident was made possible, and is himself responsible for his misfortune. The plaintiff contends that there is no such clear and uncontradicted evidence of contributory negligence on his part as would justify the court in taking the case from the jury; second, that, if there was such proof, the defendant was aware of the perilous position in which the plaintiff had placed himself; and, fourth, that the doctrine of fellow servants has no application to the facts of this case. But, as we have said, we think there is one controlling question which will render it unnecessary to consider any other involved in this appeal, and that is whether the defendants can be...