Wise v. Ackerman

• Citation: 25 A. 424,76 Md. 375
• Parties: WISE ET AL. v. ACKERMAN.
• Decision Date: 02 December 1892
• Court: Court of Appeals of Maryland

25 A. 424

76 Md. 375

WISE ET AL. v. ACKERMAN.

Court of Appeals of Maryland

December 2, 1892

Appeal from Baltimore city court.

Action by Christian A. B. Ackerman, by his next friend, Conrad Ackerman, against Ed ward H. Wise and Leo H. Wise, trading as Wise Bros. From a judgment for plaintiff, defendants appeal. Reversed.

Argued before ALVEY, C.J., and ROBINSON, BRYAN, MCSHERRY, FOWLER and ROBERTS, JJ.

Benj. Kurtz, for appellants.

Wm. Colton, for appellee.

ALVEY C.J.

The appellee brought this action against the appellants to recover for an injury suffered while in the employ of the latter, resulting from what is alleged to have been a defective and dangerously constructed elevator, operated in the appellants' factory. It is alleged by the appellee that he was in the employ of the appellants in their factory to render certain services, "and that in the course of his said employment it was necessary for him to ride in and upon a certain elevator constructed and erected by said defendants in their factory, and propelled by steam, as a passenger from floor to floor, and especially from the third to the fifth floor thereof, from day to day, during the period of his said employment; that by the negligence and default of said defendants the said elevator and the shaft up and down which said elevator was propelled by steam were, and each was, constructed and erected unsafely, and in a defective and improper manner, the said elevator being without proper and suitable guard rails and walls, the said shaft being made dangerous and unsafe because of certain scantlings or boards projecting therein in close proximity to said elevator when on its passage up and down the shaft, from about the fourth floor of said factory, and were suffered and permitted to be and remain out of repair, and in an unsafe and dangerous condition for want of repair, etc., which the defendants well knew, but of which the plaintiff was ignorant; that by reason of the premises the plaintiff, while so employed, and while riding in and upon said elevator, as a passenger in the course of his employment, from the third to the fifth floor of said factory, and exercising due care and caution, on the 4th day of September, 1890, was injured by the catching of his left foot and ankle between the floor of said elevator and the said projecting scantling or boards in the said elevator shaft, whereby the plaintiff was seriously and permanently injured, crippled in his said left foot and ankle, etc. The complaint is set forth in two other counts, but in more condensed form. The plea was "Not guilty."

There were several exceptions taken by the appellants in the course of the trial, four of which were to rulings upon questions of evidence; and on the whole evidence admitted the plaintiff offered fourteen prayers, and the defendants seven. All of the plaintiff's prayers, except the fourteenth, were granted, and all those of the defendants were granted except the first, and that asked the court to say that there was no evidence legally sufficient to be considered by the jury, and therefore the verdict should be for the defendants. We shall dispose of the prayers first.

It appears from the evidence that the appellee was 14 years and 7 months old at the time of the accident; that his employment required him to go from one floor to another in the factory very often,--as often as 20 times a day; that among his duties were those of getting trucks for the transfer of goods, and taking them from one floor to another by the elevator, and unloading goods from the waiter or platform of the elevator. On the occasion of the accident he had been sent for a truck to a lower floor, and after getting the truck, and placing it on the platform of the elevator, he got on himself, and was ascending the shaft, (the elevator being in charge of and operated by an independent regular operator,) when at the third floor, and while standing near the edge of the platform, with his back to the outer edge his left foot, in some way extending over the side of the platform, was caught between the side of the platform and the end of a joist projecting into the shaft, and was badly crushed. The space between the edge of the platform and the end of the projecting joist or timber in the shaft was about two inches. The plaintiff swears that the shaft was dark, and that he did not see the projecting joist, or know of the danger to his position on the elevator. The defense is that the injury was produced by the plaintiff's own carelessness, or by his negligent inattention to the obvious dangers of his situation on the elevator; and considerable evidence is given in support of that defense. It is also insisted that the plaintiff was wrongfully, and against warning, riding on the elevator, and therefore at his own risk; there being stairways for going from one floor to another. We have carefully considered the evidence, and are of opinion that the court below was well warranted in declining the defendants' prayer to withdraw the case from the jury. But, inasmuch as we find it necessary to reverse the judgment, and remand the case for a new trial, on some of the exceptions taken, we refrain from a critical analysis of the evidence in support of the claim of the plaintiff, but leave that to the jury, whose province it will be to draw their own conclusions therefrom. But in saying that the case was properly submitted to the jury on the facts, we are not to be understood as intimating an opinion as to the weight of evidence, or that upon the whole evidence the weight thereof preponderates the one way or the other. We simply say that there was sufficient evidence to be considered by the jury, and that upon the whole evidence it was for the jury to say, under the instructions of the court, what was the just result of the facts before them. There is no doubt that where an elevator is erected in a factory or warehouse, and is intended to be used only for the purpose of carrying and transferring goods and materials from one part of the building to another, and the employes in the establishment, familiar with the construction and operation of the elevator, and the purpose of its construction, ride thereon under a mere implied license, for their own pleasure or convenience, they must be taken to accept whatever risk may be incident to such construction and operation; and in such case they can only require of the defendant the use of ordinary care, either in the construction or operation of the machine. O'Brien v. Steel Co., 100 Mo. 182, 13 S.W. 402; Patterson v. Hemen way, 148 Mass. 94, 19 N.E. 15. But an elevator is in many respects a dangerous machine, and, though it may be primarily intended only as a freight elevator, yet, if the employes, in the course of their employment, are authorized or directed to use the elevator as means of personal transportation, the employer, controlling the operation of the elevator, is required to exercise great care and caution, both in the construction and operation of the machine, so as to render it as free from danger as careful foresight and precaution may reasonably dictate. Nothing short of this will excuse the defendant, unless it appear that the plaintiff himself, or the party under whom the plaintiff is allowed to claim, was guilty of direct contributory negligence to the production of the disaster. Bank v. Morgolofski, 75 Md. 432, 23 A. 1027; Treadwell v. Whittier, 80 Cal. 575, 22 P. 266. This last case referred to contains quite an exhaustive examination of the whole subject, and, while most of the propositions there maintained are unquestionable, there are some to which we are not called upon, by the...