Koch v. Otis Elevator Co.
| Decision Date | 17 May 1960 |
| Citation | 200 N.Y.S.2d 700,10 A.D.2d 464 |
| Parties | Charles KOCH, Plaintiff-Respondent, v. OTIS ELEVATOR COMPANY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
William F. McNulty, New York City, of counsel (Hampton & Mahoney, New York City, attorney), for defendant-appellant. Herbert L. Fine, New York City, of counsel (Elmer Fried, New York City, attorney), for plaintiff-respondent.
Before BOTEIN, P. J., and BREITEL, M. M. FRANK, STEVENS and BERGAN, JJ.
Defendant Otis Elevator Company undertook by written agreement with the Emerson School to service an automatic elevator in premises 12 East 96th Street. The agreement required defendant to 'use all reasonable care to maintain the elevator[s] in proper and safe operating condition' and to 'regularly and systematically examine, adjust, lubricate as required, and if, in our judgment, conditions warrant, repair or replace' certain enumerated parts.
Plaintiff was the superintendent of the building in the employ of Emerson School and lived in the premises. On the evening of June 22, 1954 the elevator stopped between the first and second floors while plaintiff was operating it. He rang the alarm bell, but was unable to attract attention and remained overnight in the elevator. In the morning he succeeded in getting out, but in doing this he reactivated or exacerbated a prior injury which had been sustained in an automobile accident.
Plaintiff has had a recovery in the City Court against the defendant elevator company on the theory of negligence; the judgment has been affirmed at Appellate Term; but in our view of the record a case of negligence has not been made out and defendant is entitled to judgment.
No such ownership or exclusive control of the elevator or its operating mechanism has been attributed to the defendant, as would permit application of the doctrine of res ipsa loquitur. Thus case such as Beinhocker v. Barnes Development Corp. and Staley Elevator Co., 296 N.Y. 925, 73 N.E.2d 41, where a part of the equipment controlling the elevator, the failure of which caused the accident, was the property of the maintenance company which by contract retained control of such equipment; or Ames v. Watson Elevator Co., 303 N.Y. 732, 103 N.E.2d 345 where the safety device which failed remained under control of the elevator company, are not decisive in the situation in the case before us. The Court of Appeals decided Ames on a pleading alleging exclusive control of the equipment in the elevator service company; but on the actual trial a factual situation arose very similar to the one presented here; and the complaint against the elevator service company was dismissed at the end of the proof. Ames v. Jalpur Realty Corp., 20 Misc.2d 656, 138 N.Y.S.2d 698.
Nor was plaintiff using the elevator relying on specific and affirmative assurance by defendant after making adjustments or repairs that it would operate without stopping, so as to bring the case within Kelly v. Watson Elevator Company 309 N.Y. 49, 127 N.E.2d 802 or Wroblewski v. Otis Elevator Co., 9 A.D.2d 294, 193 N.Y.S.2d 855. The usual rule, therefore, guides the determination of this case, that plaintiff must factually demonstrate the negligence which he attributes to defendant. Foltis, Inc., v. City of New York, 287 N.Y. 108, 38 N.E.2d 455, 153 A.L.R. 1122; Manley v. New York Telephone Co., 303 N.Y. 18, 100 N.E.2d 113; Stafford v. Sibley, Lindsay & Curr Co., 280 App.Div. 495, 114 N.Y.S.2d 177.
Plaintiff did not show what caused the elevator to stop between the first and second floors on June 22. He showed merely that it stopped. Defendant's records disclosed that when defendant's mechanic was called on June 23 he found 'Mainline fuse open--no cause'. The term 'fuse open' was explained in the record as meaning 'fuse was blown'.
It was abundantly demonstrated that a blown mainline fuse would stop the elevator. For such a fuse blowout there were shown to be several causes; but nothing in the record suggests any negligent attribution of this blowout to defendant or any knowledge that it was likely to occur.
Although plaintiff was not a party to the maintenance contract and hence was not in...
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Williams v. Otis Elevator Co.
...Co., 214 Cal. 733, 7 P.2d 1013 [1932]; Higgins v. Otis Elevator Co., 69 Ga.App. 584, 26 S.E.2d 380 [1943]; Koch v. Otis Elevator Co., 10 App.Div.2d 464, 200 N.Y.S.2d 700 [1960]; Jones v. Otis Elevator Co., 234 N.C. 512, 67 S.E.2d 492 [1951]; Durham v. Warner Elevator Mfg. Co., 166 Ohio St. ......
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