Harmer v. Reed Apartment & Inv. Co.

• Decision Date: 01 December 1902
• Citation: 53 A. 402,68 N.J.L. 332
• Parties: HARMER v. REED APARTMENT & INVESTMENT CO.
• Court: New Jersey Supreme Court

53 A. 402

68 N.J.L. 332

HARMER

v. REED APARTMENT & INVESTMENT CO.

Court of Errors and Appeals of New Jersey.

Dec. 1, 1902.

(Syllabus by the Court.)

Error to circuit court, Atlantic county.

Action by George W. Harmer against the Reed Apartment & Investment Company. Judgment for plaintiff, and defendant brings error. Affirmed.

David J. Pancoast, Harry Wootton, and William M. Clevenger, for plaintiff in error.

Francis Lafferty. for defendant in error.

GARRETSON, J. The plaintiff, a painter, was in the employ of Wilbert Beaumont, who had a contract to build an apartment house for the defendant. The building was so nearly completed that the elevator was in the elevator shaft, and had been running for about 10 days under the control of the defendant, with the permission of the contractor. The elevator shaft was inclosed on the front with a metal grill work. The doors were not on. The side and back grills were not on. To guard the elevator shaft, there was a hand rail, made of lumber. The stairway wound around the elevator shaft, and the plaintiff was set to work by the foreman of the painters to varnish the fnside of the elevator shaft. He commenced at the ceiling of the fifth floor, and varnished all the way down to the floor of the fourth floor. The plaintiff, with his feet on the floor, or on the stairs outside of the shaft, leaned inside of the shaft so as to get at those parts of the shaft there which he was to varnish. While in this position, and so engaged, the elevator started from the lower floor to ascend, and the counterweight started from the upper floor to descend, and the descending counterweight struck the plaintiff while so engaged in varnishing, and injured his arm and shoulder, and for these injuries he brought suit, and recovered on the verdict of a jury the judgment now under review.

It appears from the evidence of the plaintiff that when the elevator was used he heard the man say, "Hello, warning!" and "Hello, load!" One of the defendant's witnesses, a part owner, who was looking after the interests of the company in the erection of the building, testifies that he spent four or five hours of each day during the working hours in the building, preceding the accident, but not the day of the accident; that he heard warnings given by the janitor in the employ of the defendant; that the warnings consisted in calling out "Look out above!" repeated often two or three times before the elevator was moved, in a voice as loud as possible, so that it could be heard around throughout the entire building and outside. Another witness for the defendant testifies that he often heard warnings given by the janitor and the elevator man, consisting of "Look out above!" or "Look out below!" which could be heard very plainly in the open shaft and stairway, and testifies he was under the Impression he heard them all the time. The plaintiff testifies that he was not given any caution or warning on this occasion that the elevator was going to move; and the operator of the elevator, a witness for the defendant, says nothing about whether he had been in the habit of giving warning of the moving of the elevator before the accident, or whether he gave warning at the time of the accident Under this testimony it was negligence in the defendant to move the elevator without giving the customary signal, and the jury was Justified in so finding. Schmitt v. Insurance Co. (Sup.) 43 N. W. Supp. 318; Anderson v. Mill Co., 42 Minn. 424, 44 N. W. 315. In this latter case, where the plaintiff was injured by being struck by a log while working in a log chute, no signal being given of its approach, although it was agreed that a signal would be given whenever a timber was sent down the slide, the court held: "It was negligence for the company to omit to give the cautionary signal of approaching danger, and it was not negligence for the plaintiff, engrossed as he was in his work, to wholly rely upon it." See, also, case of Railroad Co. v. Hardy, 59 N. J. Law, 502, 39 Atl. 637. It is a familiar rule that one who receives injury from the disregard of an obvious danger or a danger which could be discovered by the reasonable exercise of his faculties is regarded as being injured through his own negligence. It was undoubtedly obvious that when the elevator ascended the counterweight descended, and that injury would come to one in the path...