Wroblewski v. Otis Elevator Co.
| Decision Date | 10 December 1959 |
| Parties | Jean WROBLEWSKI, Plaintiff-Appellant, v. OTIS ELEVATOR COMPANY, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
A. D. Robert Jones, Albany, for plaintiff-appellant.
Ainsworth, Sullivan, Tracy & Knauf, Albany (Bruce R. Sullivan, Albany, of counsel), for respondent.
Before FOSTER, P. J., and BERGAN, COON, HERLIHY and REYNOLDS, JJ.
This is an appeal by a plaintiff from a judgment of no cause of action in a negligence action.
Appellant was an elevator operator for the New York Telephone Company, employed in its building on State Street in the City of Albany, New York. On the 11th day of May, 1953, she discharged her last passenger from the elevator she was operating, on to the seventh floor of the building, then placed the control handle in an up position, but the elevator, instead of going up, plunged downward until it forcibly struck the buffer in the pit at the foot of the elevator shaft. As a result of this fall she claimed to have received the personal injuries which formed the basis of her claim for damages in this action. The Otis Elevator Company, the defendant-respondent, had a service contract with the New York Telephone Company with respect to the elevator in question, as well as others, maintained in the Telephone building. This contract provided for service by way of examination of the elevator, cleaning, oiling and greasing, and making necessary minor adjustments. Emergency call-back service was also provided for between regular examinations if trouble developed with the equipment and Otis was notified. For this service Otis received $754 a month.
The elevator in question was not an Otis elevator, but had been manufactured by the Gurney Elevator Company, electrically designed by the General Electric Company, and installed in the Telephone building in 1929. Appellant testified that on the morning of the day the accident happened she noticed that the elevator did not work properly, and she so notified the elevator starter who was on duty at the time. Later a service man from Otis appeared and rode with her in the elevator to the 9th floor, made some sort of an examination there, and then told her that the elevator was working all right. The service man flatly denied the testimony of appellant in this respect and on that phase of the case a sharp issue of fact was presented.
After the accident happened the service man named by appellant made an examination of the elevator, and checked the various control and safety devices. He testified that he ran the car up and down about 50 times before he discovered that something was wrong with the car. On the last trip down he threw the control handle up but the car continued to go down. Finally it was found that one of the wires, designed and installed to carry an electric current in the traveling cable, had been severed, and this break was the source of the trouble.
A great deal of evidence was taken on the trial but the foregoing will serve to indicate the questions of law involved. On the issue of liability the trial court charged the jury in this language:
'Unless, from the evidence in this case, you find that the Otis Elevator Company, the defendant, made repairs or made replacements on this elevator, and that in making such repairs or replacing such parts by some act of commission or omission it brought about the accident described in the evidence in this case, the plaintiff cannot recover.'
In thus limiting the consideration of the jury we think the trial court erred. As a matter of fact there was no evidence that Otis had made any repairs to the elevator, or replaced parts, prior to the accident; hence the charge quoted amounted, for practical purposes, to a direction of a verdict for the defendant. The respondent argues here that failure to inspect properly was a breach of contract, and the remedy arising therefrom belonged solely to the Telephone Company (Greenauer v. Sheridan-Brennan Realty Company, 224 App.Div. 199, 229 N.Y.S 719; Murray v. Usher, 117 N.Y. 542, 23 N.E. 564; Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139). The trial court apparently relied upon the principle of...
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