Westinghouse Electric Elevator Co. v. Hatcher, 10436.

• Citation: 133 F.2d 109
• Decision Date: 12 March 1943
• Docket Number: No. 10436.,10436.
• Parties: WESTINGHOUSE ELECTRIC ELEVATOR CO. v. HATCHER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

133 F.2d 109 (1943)

WESTINGHOUSE ELECTRIC ELEVATOR CO. v. HATCHER et al.

No. 10436.

Circuit Court of Appeals, Fifth Circuit.

February 2, 1943.

Rehearing Denied March 12, 1943.

A. Allen Wight and Lucian Touchstone, both of Dallas, Tex., for appellant.

John White, W. B. Handley, Wm. M. Cramer, Harry P. Lawther, Hoyet A. Armstrong, Robert G. Payne, and Claude Williams, all of Dallas, Tex., for appellees.

Before SIBLEY and HUTCHESON, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge.

Maxey M. Hatcher was seriously injured in an elevator operated by his employer, Whittle Music Company, hereafter called Music Company. Texas Employers Insurance Association, compensation insurer for the Music Company, intervened in this suit by Hatcher against Westinghouse Electric Elevator Company, appellant, for damages ex delicto. It is claimed that Hatcher's injuries were caused by the failure of the automatic safety device to stop the fall of the elevator when both cables broke at approximately the same time.

The Music Company and appellant had executed a contract, under which the latter bound itself "to furnish inspection services" for this passenger elevator, as well as another handling freight, in which appellant agreed to do certain things as follows:

"1. The Company will make Two (2) inspections per month of the apparatus including cleaning and lubricating of machines, motors, and controllers; oiling or greasing all bearings and guide rails. Necessary minor adjustments will be made at the time of inspection.

"This agreement also includes the furnishing of oils, greases, waste and all cleaning materials. This agreement does include inspection or adjustment to hatchway or car enclosures, hatchway or car doors or gates, signal devices, interlocks and door mechanisms."

The elevator had been in service for many years, and it was the opinion of experts that breaking of the cables was caused by crystallization from long use. It had a safety device which contemplated that the centrifugal force, produced by an accelerated turning of the governor, would cause certain dogs to fly out and trip a trigger that brought into play other mechanisms to stop the fall of the elevator. A spring held these dogs in place during normal movement, but if it was pressed down too tight, this prevented the dogs from responding to the centrifugal force. It was shown that at the time of the accident there were several extra washers behind the spring and it is not seriously questioned that this accounted for the failure of the device to work and stop the fall of the elevator. The question, therefore, is one of fact as to who was responsible for having placed the extra washers behind the spring.

The case was tried to a jury, which found for the plaintiff in the sum of $21,000, but was reduced by remittitur, directed by the judge, to $17,500.

Appellant makes some eight assignments of error: (1) that the contract between it and the Music Company was inadmissible in evidence; (2) that it did not require the performance of the duty charged to have been omitted; (3) that if appellant was required to perform this service, it was as agent of the Music Company in discharging a nondelegable duty, for which appellant can not be held liable; (4) that if appellant was an independent contractor at the time of the accident, the work had been performed and accepted by the Music Company, which terminated appellant's liability; (5) that the court erred in admitting the testimony of certain witnesses who saw the alleged defective governor on the day after the accident, without first proving its condition was the same as when the accident happened; (6) that the evidence was insufficient to create more than a suspicion of appellant's negligence; (7) the failure of the lower court to sufficiently define the issues outlined by the pleadings; and (8) that other persons, made third parties defendant, having the responsibility of inspecting and repairing the elevator, had inspected and worked on it after that last performed by appellant — in other words, there was no substantial...