Mueller v. Phelps
| Decision Date | 08 February 1912 |
| Citation | 252 Ill. 630,97 N.E. 228 |
| Parties | MUELLER v. PHELPS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Oscar E. Heard, Judge.
Action by Constantine Mueller against Anna M. Phelps, as executrix, etc. Judgment for plaintiff affirmed on error by the Appellate Court (159 Ill. App. 590), and defendant brings certiorari. Affirmed.F. J. Canty and J. C. M. Clow, for plaintiff in error.
Adler & Ledered, for defendant in error.
Defendant in error brought an action on the case in the superior court of Cook county for personal injuries. On the trial the court directed a verdict in favor of Henry Jacobs, one of the defendants, and the case proceeded against Erskine M. Phelps, the other defendant, resulting in a verdict and judgment for $4,500 in favor of defendant in error. The Appellate Court affirmed the judgment on appeal, and the case was brought to this court by petition for certiorari. Pending the appeal in the Appellate Court, Phelps died, and his executrix was substituted as a party to the suit.
The case was tried on the first and second counts of the declaration. The first alleged that Phelps, on August 17, 1906, was the owner of the premises 48 and 50 Wabash avenue, in Chicago; that Henry Jacobs conducted a restaurant on the main floor, and employed defendant in error as a cook; that it was one of Mueller's duties to haul material to and from the basement to said restaurant by means of an elevator; that the defendants neglected to fulfill their duties in keeping the elevator shaft and appurtenances in good condition and repair, and that, by reason of the defective condition, while plaintiff was in the exercise of due care, he was struck by the elevator, thrown to the ground, and injured. The second count stated the same accident, and alleged the negligence of the defendants to be that they failed to keep the elevator in good condition and repair, and provide sufficient light and appliances in said elevator and shaft. The general issue was pleaded. It was stipulated that Phelps, at the time of the accident, owned the premises in question.
The evidence showed that the elevator was used for carrying freight between the five stories and basement of the building, and was used in common by the tenants of the building. The private secretary of Phelps testified that it was a part of his duties to inspect the building at intervals, and on such occasions he would examine the elevator to see that it was in good running order. Defendant in error was employed as chief cook by Jacobs, a tenant, who ran a restaurant on the main floor. The elevator was about seven or eight feet square. The shaft where it passed through the kitchen was inclosed in solid walls, having an iron door five or six feet wide, which opened into it from the kitchen. Defendant in error testified that on the occasion in question he desired to use the elevator to go down to the basement to look over some kitchen supplies. He raised the door, put his head into the shaft, and called, ‘Elevator there?’ and almost immediately was struck on the head by the descending elevator, which was in use by one of the other tenants, knocked to the basement floor, and his leg broken and other injuries inflicted, so that he was incapacitated for several months. There is some evidence tending to show that his limb was injured permanently. There were lights in the kitchen, but none in the elevator shaft. Evidence on the part of defendant in error was to the effect that it was almost ‘pitch dark’ on the inside of the shaft, and he could see nothing. There was evidence in behalf of plaintiff in error to the effect that there was sufficient daylight in the shaft, so that the elevator could be seen, when still at a considerable distance above the floor, without putting one's head entirely into the shaft. There was no regular operator, and the employés of each tenant ran the elevator when they desired to use it. The evidence all tended to show that to use the elevator it was necessary to raise the door and look into the shaft to find what floor it was at, and to ascertain if it was already in use by another tenant. The elevator was operated by a rope, pulled up or down, as desired.
[1] It is first contended that the declaration does not set out a cause of action against the plaintiff in error; that it does not state sufficient facts from which the law will presume a duty resting upon Phelps, the nonperformance of which resulted in the injury complained of. The law is settled in this state that a landlord who rents different parts of his building to various tenants, reserving the elevators, halls, stairways, or other approaches for the common use of his tenants, is under an implied duty to keep such spaces in a reasonably safe condition, and is liable for injuries to...
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...etc., Co. v. Dandelin, 143 Ill. 409; Loescher v. Coal Co., 173 Ill. 526; Chicago, etc., Railroad Co. v. Nelson, 215 Ill. 436; Mueller v. Phelps 252 Ill. 630. (4) The doctrine assumption of risk only applies in master and servant cases and has no application to the facts of this case under t......
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...would reach the conclusion that there was contributory negligence. Thomas v. Buchanan, 357 Ill. 270, 277, 192 N.E. 215;Mueller v. Phelps, 252 Ill. 630, 97 N.E. 228;Thomason v. Chicago Motor Coach Co., 292 Ill.App. 104, 10 N.E.2d 714. If there is any evidence standing alone, which tends to s......
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