Lander v. Hornbeck
| Decision Date | 02 April 1918 |
| Docket Number | Case Number: 9139 |
| Citation | 1918 OK 173,179 P. 21,74 Okla. 239 |
| Parties | LANDER et al. v. HORNBECK. |
| Court | Oklahoma Supreme Court |
¶0 1. Carriers--Passenger Elevator--Care Required.
The owner of passenger elevators owes to the passengers using the same the highest degree of care, vigilance, and precaution.
2. Landlord and Tenant--Passenger Elevator- -Injury--Liability.
Where the owner of a building leases different floors or rooms to different tenants, but retains control and management of the elevators in the building, he is responsible for injuries to tenants, their employees, and such other persons as may be lawfully using the same where the injuries are due to the negligent management, operation, or use thereof.
3. Control of Passenger Elevator.
But in such case, if the elevator is in the absolute control of the tenant, the owner is not liable. The evidence examined, and held, same insufficient to sustain the contention that the elevator was in the absolute control of the tenant.
Error from District Court, Oklahoma County: Edward Dewes Oldfield, Judge.
Action by Adam Hornbeck, Jr., against Phillip Lander and another. Judgment for plaintiff, and defendants bring error. Affirmed.
J. S. Ross, for plaintiffs in error.
Lawrence Mills, for defendant in error.
¶1 The plaintiffs in error are the duly qualified executors of the estate of one Randall, deceased, and at the time of the injury complained of here they had in their possession and under their control the real estate mentioned in this cause. The same was a five-story building which was being used and occupied by various tenants, and the fifth floor thereof was leased to one Mrs. Summers, who used two or three rooms for a dwelling, and in the balance she conducted a dance hall, which was so used on each evening of the week, save on Sundays.
¶2 All the tenants used a common stairway, which extended to the fifth floor, and an elevator, which was under control of the landlord and was operated by him from early morn to approximately 6 o'clock in the evening of each day of the week, save on Sundays, and the operator employed by the landlord generally took the elevator to the fifth floor in the evening when his hours were done, and left the same for the permissive use of Mrs. Summers for the rest of the day. She employed an elevator operator, and paid him from her own means, and this man employed by her went upon duty about 8 o'clock and remained on duty until approximately 12 o'clock when needed, and the power therefor was furnished by the landlord.
¶3 The doors to the entrances of this elevator did not automatically lock, and when locked could be easily unlocked from the outside. The elevator was as accessible to the use of the other tenants as to Mrs. Summers after the operator employed by the landlord had ceased his work, and the proof here shows it was used by other parties than her, but by whom it is not shown. And the evidence further establishes that little attention was paid to the elevator and its operation by any one after the day operator left it, but it was operated by any one who desired to use it.
¶4 Mrs. Summers was accustomed to use it for the comfort of her family and guests during the time no operators were in charge and on Sundays, and her use at all times may be said to have been permissive, and not contractual, as she could have been denied it and no rights of contract violated, and other tenants might have used it without interfering with her contractual rights.
¶5 On the Sunday evening in question the defendant in error visited Mrs. Summers in her apartment as her guest, and the elevator was brought by her to the first floor, and he was conducted to the floor upon which her apartment was located, and they left the elevator, and they, with others, spent some time visiting, and afterwards concluded to attend a show, and the defendant in error and three others left the apartment and started through a poorly lighted hall to the elevator, and when they reached the entrance to the elevator the door of which was open the defendant in error stepped in the shaft and fell to the first floor, and suffered serious and painful injuries, for which he seeks to recover damages here.
¶6 The petition alleges negligence upon the part of the defendants below in the operation of said elevator, substantially as stated here, and the answer was a general denial and a plea of contributory negligence. A trial resulted in a verdict for the defendant in error, and to reverse which an appeal is had here.
¶7 In 9 R. C. L. p. 1250, § 16, it is said:
* * *"
¶8 And in section 17 thereof it is said:
"The landlord's duty extends to members of the tenant's family, guests, employes, and other persons passing to the apartments of the tenant by actual or implied invitation. * * *"
¶9 As to the degree of care the law imposes upon the owner of an elevator, the best reasoned authorities and a majority of them clearly say that he must use the highest degree of care, vigilance, and precaution, and as is well said in 9 R. C. L. p. 1249:
* * *"
¶10 In Olson v. Schultz, 67 Minn. 494, 70 N.W. 779, 36 L.R.A. 790, 64 Am. St. Rep. 437, it is said:
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