Lerner v. Bergdoll
| Decision Date | 04 January 1926 |
| Docket Number | 335 |
| Parties | Lerner v. Bergdoll, Appellant |
| Court | Pennsylvania Supreme Court |
Argued November 27, 1925
Appeal, No. 335, Jan. T., 1925, by defendant, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1919, No. 3906, on verdict for plaintiff, in case of Abraham Lerner v. Erwin R Bergdoll. Reversed.
Trespass for personal injuries. Before McDEVITT, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $20,000, Defendant appealed.
Errors assigned were various rulings and instructions, quoting record.
Judgment is reversed with a venire facias de novo.
Sidney E. Smith, for appellant. -- Appellee's own act was the proximate cause of his injury, and he was guilty of contributory negligence: Marsh v. Giles, 211 Pa. 17; Rhad v. Light Co., 255 Pa. 409.
Appellee was a mere licensee, and the only duty appellant owed him was to abstain from inflicting intentional or wanton injury: Schiffer v. Sauer Co., 238 Pa. 550.
There is no evidence expressly showing, or from which an inference based upon facts can be drawn, that the injury was caused by the alleged negligence of appellant: Snyder v. R.R., 239 Pa. 127; Bollinger v. Sand Co., 232 Pa. 636; Douglass v. Mitchell, 35 Pa. 440; Bube v. Boro., 25 Pa.Super. 88; P. & R.R. Co. v. Schertle, 97 Pa. 450; Phila. C.P. Ry. Co. v. Henrice, 92 Pa. 431; Welsh v. R.R., 181 Pa. 461; Laven v. Moore, 211 Pa. 245; Fleccia v. Atkins, 270 Pa. 573; Flanigan v. McLean, 267 Pa. 553; Eshleman v. Stock Yards Co., 222 Pa. 20.
Daniel Murphy, of Murphy & Levy, for appellee. -- The landlord was liable: Sloan v. Hirsch, 283 Pa. 230; Fox v. Phila., 208 Pa. 127; Prager v. Gordon, 78 Pa.Super. 76.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Plaintiff was injured in a building owned by the defendant, and claimed it was due to the failure to keep in repair an electric lift there installed. Each of four tenants occupied separate floors, the Kinney Company being the lessee of the first, and also of the basement. The one elevator served all, but whether the duty to keep it in a reasonably safe condition rested upon the lessor or the tenants was a matter in dispute. If the former, defendant was liable in case the necessary supervision was not exercised, and loss resulted by reason thereof (Sloan v. Hirsch, 283 Pa. 230), but the contrary was true if all control and management of it had been assumed by the lessees: Pennington v. Klemanski, 278 Pa. 591; Fitzgerald v. Sherwood, 239 Pa. 298. In view of the testimony offered in the present case, a preliminary question was raised for the jury to decide, in passing upon the liability of defendant for damages claimed.
Lerner was a junk dealer, who from time to time had collected paper and boxes from the basement, used by the tenant of the first floor, where a shoe store was conducted. On April 17, 1918, he gathered the rubbish for removal, packing the same into bags, and carrying them to the elevator shaft. On each landing above there was a semi-automatic gate, which closed the entrance when the lift rested at some other floor, and this device was controlled by weights enclosed within a wooden box, installed in the shaft, and attached to the gate by a rope. Lerner pulled the controlling cable, reaching from the unguarded opening in the basement, with the purpose of securing the descent of the elevator to that point. When so engaged, a piece of iron dropped from above, striking his head, causing the injury now complained of. There was no direct evidence to show where the falling object came from, or that it constituted a part of the machinery in use, but a witness testified it was similar in size and appearance to one of the weights used to control the operation of the gates. The same person also stated that, two hours after the accident, like pieces of iron were noticed by him at or about the sill of the first floor landing, and the rope, to which the weights were fastened, previously observed to be frayed, was then broken, as well as the sash box, where normally the irons would fall and rest if deprived of support. The latter was described as composed of wood, which had become rotten and worn. From proof of these facts, the jury found a failure, on the part of the landlord, to keep the lifting device in a reasonably safe condition, and awarded damages for the loss sustained by plaintiff.
The statement of claim averred negligence in disregarding a duty to properly "maintain said elevator, its machinery and appliances, in good order and repair." The actual defect proved, if any, was the weakness in the rope holding the weights, and the decayed condition of the wooden receptacle in which they were contained. Defendant contended that there was such a variance between the allegation of negligence, found in the pleadings and the evidence offered, as preventing submission of the case to the jury. This position cannot be sustained, since the safety device must be considered part of the machinery of the elevator, taken as a whole.
At the trial, proof of lack of due care was limited to the condition of the sash boxes, but evidence to show a general inspection within a short time prior to the accident, by the qualified city official (first assignment) was refused. In this we think error was committed. Had the witness been allowed to describe what was found by him, the condition of the wooden box, which, according to plaintiff's claim, was part of the elevator, would have been disclosed, and the presence or absence of defects complained of would have become apparent. What has been said applies with...
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