Necker v. Harvey

• Decision Date: 05 January 1883
• Citation: 14 N.W. 503,49 Mich. 517
• Court: Michigan Supreme Court
• Parties: NECKER v. HARVEY.

14 N.W. 503

49 Mich. 517

NECKER v. HARVEY.

Supreme Court of Michigan

January 5, 1883

Defendant manufactured an elevator for Detroit Soap Company under a contract that it should lift 2,000 pounds easily by steam or horse power. After it had been used two days it did not work properly, and defendant was notified and sent L. to investigate the matter. L., after taking the car to the upper floor, directed it to be loaded, and plaintiff, an employe of the soap company, assisted in loading it, and while doing so the elevator, with less than 2,000 pounds upon it, fell, by reason of the breaking of the main shaft, with plaintiff upon it. Plaintiff brought suit for damages for the injury, and the jury rendered a verdict in his favor. Held, (1) that as there was evidence which justified submitting to the jury, as a question of fact, whether defendant, by his servant, at the time of the accident, was in possession and control of the elevator, the conclusion of the jury upon that question must be final; (2) when a manufacturer is in possession of and is testing his own machinery, he owes to every one who may be in danger from it the duty of proper care; and if he exposes any one to danger from his carelessness, whether the carelessness be in handling or in construction, he must answer for the consequences. The duty of care, under such circumstances, is not a contract duty, but a duty imposed by the common law and the contract is only important as it evidences the degree of care which must be observed.

Error to superior court of Detroit.

Griffin, Dickinson, Thurber & Hosmer, for plaintiff.

John W McGrath, for defendant and appellant.

COOLEY J.

The injury for which this suit is brought was occasioned by the fall of an elevator upon which the plaintiff at the time was standing. The elevator was manufactured by the defendant for the Detroit Soap Company, under a contract that it should lift 2,000 pounds easily, by steam or hand power. It was put up in the factory of the soap company on May 27, 1881, and the fall occurred through the breaking of the main shaft three days thereafter. Plaintiff was a workman in the employ of the soap company, and was engaged in loading the elevator with a load of less than 2,000 pounds in weight when it fell.

The statement of facts so far makes out no cause of action in favor of this plaintiff. It discloses a duty on the part of the defendant to construct an elevator which should lift 2,000 pounds; but the duty was to the soap company and not to anybody else. Nothing is better settled than that an action will not lie in favor of any third party upon a breach of this duty. Winterbottom v. Wright, 10 Mees. & W 109; Longmeid v. Holliday, 6 Exch. 761; Heanen v. Pender, L.R. 9 Q.B.Div. 302; Losee v. Clute, 51 N.Y. 474. The contract creates the duty, and the contract was only with the party for whom the elevator was constructed. The plaintiff himself concedes this principle. But there are further facts in this case on which the plaintiff relies. It appears that after the elevator had been...