Otis Elevator Co. v. Embert, to Use and Benefit of South St. Corp.

• Decision Date: 07 December 1951
• Docket Number: No. 46,46
• Parties: OTIS ELEVATOR CO. v. EMBERT, to Use and Benefit of SOUTH STREET CORP.
• Court: Maryland Court of Appeals

Page 585

198 Md. 585

84 A.2d 876

OTIS ELEVATOR CO. v. EMBERT, to Use and Benefit of SOUTH STREET CORP.

No. 46.

Court of Appeals of Maryland.

Dec. 7, 1951.

Michael Paul Smith, Baltimore, and W. Albert Menchine, Towson, for appellant.

G. C. A. Anderson, Baltimore (Anderson & Barnes, Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

This is an appeal from a judgment for plaintiff in a negligence case for personal injuries sustained in a passenger elevator. Plaintiff sued the building company, as owner of the building and the elevator in it. The building company impleaded Otis Elevator Company, as a third-party defendant, alleging that Otis was liable to the building company for breach of a contract to furnish maintenance on the elevator in question and another in the same building. Plaintiff filed an amended declaration against the building company and Otis, alleging negligence of each. The case, including the third-party action, was tried before a jury, which found a verdict for plaintiff against both defendants, and for Otis in the third-party action. Otis has appealed. The building company did not appeal, but paid the judgment, which was entered to its use. This appeal is defended by the building company, as use plaintiff.

The accident occurred on May 11, 1949, about ten o'clock in the morning. It was daylight, but the electric lights in the building 'burn all the time'. The building was then under lease to the United States. Under the lease the building company was charged with maintenance of the elevator. Plaintiff, who was sixty-one, was a legal examiner in the Bureau of Internal Revenue. She had worked in the building about eighteen months. There are four main floors in the building, a basement and two mezzanine floors. There were two elevators, side by side. The one in question, on the right, was an automatic elevator, the other, to the left, was not. The Government employees were supposed to use the automatic. Taxpayers and the general public also used it. Above the push buttons beside the elevator shaft were small signs, 'Employees only.' When plaintiff went to work in the building she was instructed in the operation of the elevator by another Government employee. During the eighteen months she was there, there were no signs on the elevator instructing people how to operate it.

On each floor there is an outer door to the elevator shaft, which is opened horizontally by manually pulling it with a handle, from left to right on the outside, from right to left inside, and closes automatically. The elevator itself has an inner grilled door which is similarly opened and closed manually. In the left of two panels of the outer door, at about eye level, is a diamond shaped window, about twelve by eight inches. In the top of the elevator, in the center, half inside and half outside, is a large dome light. Through the window light is visible from the inside of the car when the car is at or within several feet above the floor and from the top when the top is below the window, but the globe itself is not visible except to one peering closely through the window to look at it. From the time the top of the car approaches the window, e. g., reaches the floor level, till the bottom passes the window, the window shows light, but does not indicate the position of the car within these limits, except to one who looks directly through the window to see. In a panel to the left of the outer door are up and down buttons, to be pushed to bring the car to the floor, and a light that flashes, 'Car coming'. When the car arrives at the floor (without passengers) the inner door is generally open and the outer door is opened manually. After the passenger enters the car the outer door closes automatically. On a panel within the car are buttons to be pushed to indicate the floor to which the car is to go. When a passenger (or any weight in excess of a low maximum) is in the car, the car will not move unless both doors are closed. If, when the car is in motion the inner door is opened, the car immediately stops. The outer door cannot be opened while the car is in motion. Before the accident it could not be opened from the inside or from the outside unless the car was within thirteen inches above or below the floor level. The outer door locks were controlled by a cam twenty-seven inches long (vertically) attached to the elevator. When the car stopped, the cam opened a door lock anywhere within the range of its own length, i. e., when the floor of the car was within thirteen inches above or below the building floor level. When the car was within thirteen inches of the floor level, the outer door could be opened either from the inside or from the outside. When it was beyond the thirteen inch distance from the floor, the outer door could not be opened from the inside or the outside. When it was stopped either within or beyond the thirteen inch distance, it could not, by either the outside or inside push buttons, be brought nearer the floor level previously selected by the passenger. It could only be brought to some other floor.

This elevator is an Otis elevator. It was installed by Otis in 1930. Since 1942 it has been maintained by Otis under a maintenance contract. The first contract was superseded by a contract of May 5, 1947, which was in force at the time of the accident. Otis has two regular types of contracts (1) a service contract to oil and grease only, unless called upon for other service if anything happens to the elevator, and (2) this full maintenance contract.

The 1947 contract was in a standard printed form used throughout the country, applicable alike to automatic and other elevators, with no distinction in terms between them, and in fact covers both of the building company's elevators. By the contract Otis undertakes 'to furnsh Otis Maintenance' on the two specified elevators, to 'maintain in the entire elevator equipment on the terms and conditions * * * set forth', to 'use trained men directly employed and supervised by us', who 'will be qualified to keep your equipment properly adjusted, and * * * will use all reasonable care to maintain the elevators in proper and safe operating condition', to 'regularly and systematically examine, adjust, lubricate as required, and if, in our judgment, conditions warrant, repair or replace' a long list of elevator parts 'and other mechanical parts--using only genuine Otis Parts for this purpose' and, among other things, 'to periodically examine all safety devices and governors, and equalize the tension on all hoisting ropes, * * * to examine, lubricate, adjust, and if, in our judgment, conditions warrant, repair or replace' specified 'accessory equipment'. It also provides, 'It is agreed that we are not required to make renewals or repairs necessitated by reason of negligence or misuse of the equipment or by reason of any other cause beyond our control, except ordinary wear and tear. We shall not be required to make safety tests nor to install new attachments on the elevator as recommended or directed to by insurance companies or by governmental authorities, or to make any replacements mentioned herein with parts of a different design. The following items of elevator equipment are not included in this contract: 'Hatchway Enclosure and Doors and Refinishing of Elevator Cabs. * * * It is agreed that we assume no liability for injuries or damage to persons or property except those directly due to our acts or omissions; and that your responsibility for injuries or damage to persons or property while on or about the elevators referred to is in no way affected by this agreement.' The first page contains a statement of belief by Otis 'that the best elevator performance is to be obtained by using every reasonable effort to prevent trouble and to avoid difficulties before they occur. In this respect a thorough knowledge of the symptoms of trouble and of their correction is far more important than the mere knowledge of how to restore damaged equipment. This is scientific maintenance as compared to repair service or merely keeping the elevators running', and the last page has a picture of 'A lone man on sentry duty. Not another person in sight. But back of him is a whole army.', under which is a statement, 'Under Otis Elevator Maintenance, a lone man may call to examine your elevators. But back of him are supervisors. And back of the supervisors are maintenance experts and planners. And back of the maintenance experts are the Otis engineers. A complete organization built from years of elevator experience. Thus it is that Otis Maintenance is scientifically planned elevator care. It brings you elevator safety * * * freedom from shut-down * * * maximum use of equipment * * * elevator economy. It brings you modern elevator upkeep.'

Otis inspectors examined the elevators once a week and, when called upon, oftener. Otis does not 'police' how an elevator is operated and says it has no way of doing so. When an elevator installed by Otis is turned over to the owners Otis shows them how to operate it, but does not put signs in the elevator for that purpose. Generally elevators of this kind do have signs, alongside the push buttons in the elevator or outside, as to show it is to be operated. This identical type of elevator is in use elsewhere in Baltimore, in Union Trust Building, St. Paul Garage, Baltimore Life Insurance Building, two in University Hospital, four at Johns Hopkins Hospital, and there are hundreds installed throughout the country. The elevator had no self-leveling device. Otis's general service superintendent for the United States and Canada testified that such a device can be, and frequently is, installed on this type of elevator, but is not standard equipment in the sense that all elevators must be so equipped, and is not mandatory by any law, rule or regulation. Such a device is very...