People's Bank of City of Baltimore v. Morgolofski
| Decision Date | 15 March 1892 |
| Citation | 23 A. 1027,75 Md. 432 |
| Parties | PEOPLE'S BANK OF CITY OF BALTIMORE v. MORGOLOFSKI. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city.
Action by Morgolofski against the People's Bank of the City of Baltimore to recover for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.
J Alex. Preston, for appellant.
Isidor Rayner and B. Wiesenfeld, for appellee.
The appellant, who was defendant below, owns a building in the city of Baltimore, which is occupied by a number of tenants for business purposes. There is an elevator in this building which was used both for passengers and freight. The plaintiff, now appellee, was employed by one of these tenants, and was seriously injured by falling from the fourth floor to the cellar through the elevator shaft. For the injuries thus sustained the plaintiff sued the defendant in the superior court of Baltimore city, and recovered judgment. From this judgment the defendant has appealed.
The two questions, as usual in cases of this kind, are-- First, was the defendant guilty of negligence? and second, was the plaintiff guilty of contributory negligence? At the close of the testimony, both parties having produced witnesses to sustain their respective contentions, the plaintiff offered two prayers, which were granted, and the defendant seven, four of which were rejected and three granted. Inasmuch as defendant's first prayer is a demurrer to the evidence, it will be necessary to examine the testimony at length.
At the time of the accident the plaintiff was working for a tenant of the defendant. He was proceeding up the stairway to the place of business of his employer on the fourth floor, when he heard the elevator going up the shaft. When he arrived at the fourth floor, he heard the elevator thrown open on that floor. Having accomplished the object of his visit, he returned to take the elevator, which was just outside the door of his employer's office. His testimony was that he could not see at all in the hall, and, having heard the elevator go up, the door of the elevator being open, and the bar back, he was sure the elevator was in its place. He stepped in to take the elevator, and fell down five floors into the basement, and was seriously and permanently injured, as set forth in the testimony. This elevator was used every day for the people employed by the various tenants, and the boy in charge of it, who was employed by the defendant, daily brought down the working people from the upper stories of the building. There was a painted window on one side of the elevator, and it was very dark there. There was no gas-light there, and the distance from the door out of which the plaintiff came on his way to take the elevator is only about two feet from the elevator door. On re-examination, the plaintiff said he heard the elevator door thrown open; that he was sure the elevator was there; and that it was so dark that he could not see whether it was there or not. The elevator boy was not in charge at the time of the accident, nor was he aware of it until informed by one of the witnesses. Several of the plaintiff's witnesses testified that this boy did not attend to his duties properly, and that he was frequently called when he was not at his post. The attention of the defendant, through its cashier, was called to these facts, and also to the fact that the shaft was frequently left open. The place around the elevator door was dark when coming out of a light room. On the part of the defendant it was shown that on the day of the accident the elevator boy left the building before 12 o'clock, and went to his dinner. The boy testified that on that day he cut off the water, and put the elevator in the cellar. On his return, he found the plaintiff lying in the cellar, and the elevator at the sixth floor of the building. He did not know how the elevator got there, but said that "the people" would run the elevator when he was at dinner, and that one of the workman told him that some of the people, "whoever it was," did not keep the gates fastened. One of the witnesses testified that this boy was a worthless and careless fellow, "and that he was a most disgraceful liar." The defendant also offered testimony tending to show that the elevator in question was an ordinary freight elevator, and that it was not safe for passengers, and the cashier of the defendant denied that he had been warned of the danger. He believed that Ross, who was in charge of the elevator, was a correct boy, and he had given him repeated instructions that the elevator should be used only for freight. The people in the building had often run the elevator themselves. He admitted, however, that he knew the elevator had been used as a passenger elevator to carry the people employed in the building, but he said he was under the impression that the defendant had no control over it. Although he was aware the elevator was so used for six years, he never gave notice of any kind that it was for freight alone. Upon these and other facts, not necessary further to refer to, it was submitted to the jury by the instructions of the court to find whether the defendant was guilty of negligence, and, if so, whether the plaintiff was guilty of such contributory negligence as would prevent him from recovery, notwithstanding the negligence of the defendant.
In the first place, it is very clear from the foregoing recital of the facts given in evidence that there was testimony before the jury tending to prove, if the jury believed it, that the defendant did not use that reasonable caution and vigilance which is required in the management of an elevator which like the one described by the witnesses, was used both for passengers and freight. The elevator was in charge of and operated by the defendant's agent, and it was bound at all times to use reasonable caution and care to make the elevator safe for all persons who had a right to use it, or who did in fact use it with defendant's knowledge and consent. Engel v. Smith, 82 Mich. 1, 46 N.W. 21. This reasonable rule is also laid down in Shear. & R. Neg. §...
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