Staley v. Theo. Hamm Brewing Co.

• Decision Date: 16 May 1919
• Docket Number: No. 21171.,21171.
• Citation: 172 N.W. 491,142 Minn. 399
• Parties: STALEY v. THEO. HAMM BREWING CO.
• Court: Minnesota Supreme Court

142 Minn. 399

172 N.W. 491

STALEY

v.THEO. HAMM BREWING CO.

No. 21171.

Supreme Court of Minnesota.

May 16, 1919.

Appeal from District Court, Steele County; Arthur B. Childress, Judge.

Action by George Staley against the Owatonna Liquor Company, the Theo. Hamm Brewing Company and another. Verdict against the Theo. Hamm Brewing Company only, and from an order denying a motion for judgment notwithstanding the verdict, or for a new trial, it appeals. Order affirmed.

Syllabus by the Court

A gate, designed to close the opening in an elevator shaft automatically when the elevator was moved up or down, was defective, and frequently failed to drop into place. It was the duty of the owner of the building containing the elevator to keep it in repair. He failed to do so. Part of the building was occupied by tenants. They and their employés knew of the defective condition of the gate. Appellant was one of the tenants, and had a right, in common with the other occupants of the building, to use the elevator as an adjunct to its business. Respondent came upon the premises, at the invitation of one of appellant's cotenants, to deliver goods to such cotenant. There was evidence tending to show that just prior to his coming an employé of appellant had taken the elevator to the second floor and that the gate had not dropped into place. Respondent fell into the open shaft and was injured. Held:

(1) That the evidence would justify a jury in finding that appellant's employé operated the elevator in a negligent manner.

(2) That he was operating it in the course of his employment and not for purposes personal to himself.

(3) That respondent was rightfully on the premises.

(4) That the failure of the owner of the building to keep the gate in repair did not absolve his tenants from responsibility for the negligence of their employés while operating the elevator, and that such tenants had possession and control of it for the purpose of operating it as an adjunct to their business.

(5) That respondent was not guilty of contributory negligence as a matter of law.

(6) That the evidence as a whole was sufficient to sustain a verdict in his favor.

The court instructed the jury that respondent could not recover, unless he came upon the premises at the invitation, express or implied, of the person whose negligence was the cause of his injuries. There was no proof that he came at the invitation of appellant. The instruction was erroneous, in that it stated the law too favorably to appellant and unduly limited respondent's right of recovery. The error was not prejudicial to appellant, and it cannot attack the verdict as contrary to the law and the evidence, on the ground that this instruction became the law of the case, and that hence the verdict cannot be sustained, in the absence of evidence showing that respondent came upon the premises at the invitation of appellant. H. J. Charles and Norbert Willwerscheid, both of St. Paul, for appellant.

J. A. & A. W. Sawyer and F. A. Alexander, all of Owatonna, for respondent.

LEES, C.

Action for personal injuries against three defendants-Virtue, the owner of a building where plaintiff was injured, and the Owatonna Liquor Company and the Theo. Hamm Brewing Company, who were tenants of portions of the building. The verdict was against the Brewing Company only. It appeals from an order denying its motion for judgment notwithstanding the verdict, or for a new trial.

The building had two floors and a basement. The Liquor Company occupied part of the second floor and the appellant part of the first floor and basement. The remainder of the building was under the control of Virtue. There was a covered platform at the rear and an inclosed shaft or well for a freight elevator extending from it to the basement below and the second floor above. The elevator was not leased to appellant, but it had the right to use it in common with the other occupants of the building, and did so use it. The opening from the platform into the elevator well was protected by a gate, which was intended to close automatically when the elevator was not at the platform. On December 27, 1916, and for a considerable time theretofore, the gate was defective, and would often stick in the grooves in which it slid up and down. If it stuck after the elevator had been run to the second floor, there was no barrier to prevent persons from stepping from the platform into the elevator well. The condition of the gate was known to all the defendants and also to respondent, a drayman who regularly delivered merchandise to the Liquor Company.

Between 5:30 and 6 p. m. on the date mentioned, respondent drove up to the platform to deliver some cases of liquor to the Liquor Company. He picked up a case and, carrying it in front of him, went along the platform to the elevator and discovered that the gate was up. He testified that this led him to believe that the elevator was at the platform. He put out his foot to feel for it, lost his balance, and fell into the well, broke his leg, and suffered other bodily injuries. In fact, the elevator was at the second floor, and the gate had failed to drop into place because of its defective condition.

[1] 1. The complaint alleged that the elevator was in the possession and under the control of all of the defendants. The court charged that there could be no recovery against any defendant, unless he had such possession and control when respondent was injured. On this appeal it is urged that there was no evidence that appellant had possession and control of the elevator at or immediately prior to the time of the accident. Several witnesses testified that an employé of the Liquor Company named Ryan used the elevator shortly before respondent was injured and that it was not used again until after the accident. On the other hand, one Suddendorf, a former employé of appellant, testified he was working at the platform when respondent drove up with the Liquor Company's goods; that about 20 minutes before one Duclos, also an employé of appellant, used the elevator to go upstairs; that, when witness saw respondent fall, he called to Duclos to come down, and that he did come down with the elevator, and assisted in carrying respondent to a place of safety. It was for the jury to decide whether Suddendorf's testimony was true or false. Their verdict indicates that they believed him. It has the approval of the trial court. We hold that the evidence would sustain a finding that Duclos was the man who last used the elevator before respondent was hurt. If he did, then, even though Virtue was responsible for the defective condition of the gate, the proximate cause of respondent's injury was the failure of Duclos to see that it closed when he ran the elevator to the second floor. His negligence was attributable to appellant, if he was then using the elevator in the course of his employment or in the line of his duty, with a view to the furtherance of its business, and not for a purpose personal to himself. Penas v. C., M. & St. P. Ry. Co., 112 Minn. 203, 127 N. W. 926, 30 L. R. A. (N. S.) 627, 140 Am. St. Rep. 470;McLaughlin v. Cloquet Tie & Post Co., 119 Minn. 454, 138 N. W. 434,49 L. R. A. (N. S.) 544;Sina v. Carlson, 120 Minn. 283, 139 N. W. 601.

2. But it is urged that, if Duclos did use the elevator in the manner detailed by Suddendorf, he was using it for a purpose personal to himself. He testified that about 4 p. m. on the day of the accident he went to the office of the Liquor Company on the second floor to play cards with Ryan and one Spence, another employé of appellant; that he sat at cards with them from the time he went upstairs until called by Suddendorf after respondent was injured. Ryan and Spence corroborated him. He denied having used the elevator at all on that day, but on cross-examination admitted that he had used it at other times. He testified that, when he had used it, it was on his employer's business, except on a few occasions, and that, if he used it at all on the day of the accident, it was in connection with the business of appellant. As already pointed out, Suddendorf testified that Duclos did use the elevator a few minutes before respondent was injured, and the jury must have found that he did. Other witnesses testified that appellant's employés frequently went to the Liquor Company's office to transact business for their employer, and sometimes brought up keg beer to be delivered with goods of the Liquor Company to customers of both companies, and that the elevator was used on such occasions. The evidence as a whole would justify a jury in finding that Duclos did use the elevator in his employer's business immediately prior to the accident.

3. The court charged that respondent could not...