Mc Donough v. Lanpher

• Decision Date: 18 December 1893
• Docket Number: No. 8401.,8401.
• Citation: Mc Donough v. Lanpher, 55 Minn. 501 (Minn. 1893)
• Parties: BRIDGET McDONOUGH <I>vs.</I> OVID P. LANPHER <I>et al.</I>
• Court: Minnesota Supreme Court

Page 501

55 Minn. 501

BRIDGET McDONOUGHvs.OVID P. LANPHER et al.

No. 8401.

Supreme Court of Minnesota.

Submitted on briefs November 22, 1893.

Reversed December 18, 1893.

Appeal by defendants, Ovid P. Lanpher, Dudley B. Finch, James H. Skinner and Charles W. Williams, from an order of the District Court of Ramsey County, John W. Willis, J., made June 19, 1893, denying their motion for a new trial.

The plaintiff, Bridget McDonough, was sixteen years old and in the employ of defendants.In going to her work about eight o'clock in the morning of May 7, 1892, she took the elevator to go up to the fifth story and was injured in the manner stated in the opinion.A guardian ad litem was appointed, and she brought this action and obtained a verdict for $1,250.Defendants moved for a new trial, and being denied appeal.

Kueffner, Fauntleroy & Searles, for appellants.

Chas. H. Taylor, for respondent.

GILFILLAN, C. J.

The action is to recover for a personal injury.The defendants were engaged in business as wholesale dealers in hats, caps, furs, gloves, etc., and manufacturing and repairing furs and fur garments, carrying on the business in a five-story building on Fourth street, St. Paul.In the building was an elevator, running from the lowest to the highest story.The elevator was not inclosed with anything in the nature of wainscoting or boarding, but consisted of a platform or floor, with posts at the corners, and an intermediate post on each side extending up to the framework at the top.About three feet above the floor was a narrow strip of board on the sides, nailed to the posts, and another about three inches high from the edge of the platform.The plaintiff was working for defendants, and was employed with seventy-five or a hundred others in the fur department of the business, the work of which was done in the fifth story.The elevator was used for carrying freight, and the employes were permitted, especially when arriving in the morning and when quitting at night, but were not required, to ride up and down in it, to and from the stories where they worked.There were stairs which they could use if they chose.On arriving at the building one morning, plaintiff took the elevator to ride up to the fifth story, and on entering it she rested her hand on the upper strip and one foot on the lower, and in ascending, the foot, which must have been in part outside the strip, was caught and injured by a joist or timber in one of the floors projecting inside the wall or casing of the elevator well or shaft so as to come very near the edge of the elevator floor.

On the trial plaintiff had a verdict, and the appeal is from an order denying a new trial.

The appellants make several assignments of error, only one of which it is necessary to consider.

The court instructed the jury: "If you find that this elevator described in the testimony was used, with their knowledge and consent, as a passenger elevator, in that casethe defendants were bound to the exercise of the highest human skill, foresight, and prudence in making the elevator safe for the purpose of transporting human beings from one portion of the building to another.So much for the obligation resting on the defendants in case you find this to have been a passenger elevator."

That is the degree of care required of a common carrier of passengers towards the passengers he carries.It is a higher degree than is required of a master towards his servant.That degree is stated in Cooley on Torts (page 567) thus: "The law does not require him to guaranty the prudence, skill or fidelity of those from whom he obtains his tools or machinery, or the strength or fitness of the materials they make use of.If he employs such reasonable care and prudence in selecting or ordering what he requires in his business as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him."SeeGates v. Southern Minn. Ry. Co.,28 Minn. 110, (9 N. W. 579.)

The rules are general, and from considerations of convenience and public policy there are no exceptions.There are sound reasons for requiring a higher degree of care in one case than in the other.An obvious one is, that in the case of the passenger, he neither does know nor can know, nor is he called on to inform himself, whether the carrier employs competent and careful servants and fit and proper machinery and means for performing the service, but he commits himself unreservedly to the care of the carrier; while the servant in most cases may know, and, if the matter is open to ordinary observation, is bound to know, whether the machinery and appliances employed by the master be fit and proper.

As there cannot be two rules as to cases between master and servant, one applying to the use of one kind of machinery and another to another kind, it is evident that if the relation between plaintiff and defendants at the time of the injury was only that of master and servant, the instruction was wrong.We suspect the court below was misled by some indefiniteness in the opinion in Goodsell v. Taylor,41 Minn. 207, (42 N. W. 873,) which was not a case of master and servant, but of innkeeper and guest; and it was said: "The relation between the owner and manager of an elevator for passengers is similar to that between an ordinary common carrier of passengers and those carried by him."That would not be applicable where a relation requiring a different degree of care exists, and the person is riding and being carried in that relation.

The question comes, then, to this: Was plaintiff, in riding in the elevator from the lower to the fifth story of the building, doing so as the defendants' servant, or was she riding as a passenger, being carried by them as a common carrier?

We find no case precisely similar in which that question was distinctly passed on.Treadwell v. Whittier,80 Cal. 574, (22 Pac. 266,) was not a case of an employe, but of a customer, riding in an elevator.It was therefore not unlike Goodsell v. Taylor, and the rule expressed in the latter case was...