Ziemann v. Kieckhefer Elevator Manuf'g Co.

• Decision Date: 20 June 1895
• Citation: 63 N.W. 1021,90 Wis. 497
• Parties: ZIEMANN v. KIECKHEFER ELEVATOR MANUF'G CO.
• Court: Wisconsin Supreme Court

90 Wis. 497

63 N.W. 1021

ZIEMANN

v.KIECKHEFER ELEVATOR MANUF'G CO.

Supreme Court of Wisconsin.

June 20, 1895.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Richard Ziemann against the Kieckhefer Elevator Manufacturing Company, impleaded with the Reliance Wire & Iron Works. From a judgment for defendant, plaintiff appeals. Affirmed.

This was an action against the Kieckhefer Elevator Manufacturing Company, engaged in the manufacture and sale of passenger and freight elevators, and the Reliance Wire & Iron Works, engaged in the manufacture and sale of architectural wire and iron works in a certain four-story building in Milwaukee, Wis., to recover damages sustained by the plaintiff while engaged in the employ of the latter company as a brass and iron polisher, under the following circumstances: The elevator company had made an agreement with the Reliance Wire & Iron Works to place in its building a first-class freight elevator, with all modern improvements and automatic brakes, all in good and complete running order; and it placed in said building, accordingly, an elevator operated by steam power, for the purposes of conveying freight to and from the various stories and basement of said building; but it was not to be accepted and paid for until in complete running order, and, in case any defects in the work, material, or construction should appear, the elevator company was to promptly make good and repair the same, and that in the meantime, and until approved, the Reliance Wire & Iron Works should hold and operate the elevator for its business, under the supervision and control of the elevator company. While the elevator was so on trial by and in possession of the defendant the Reliance Wire & Iron Works, unaccepted and held for the elevator company, and on December 6, 1892, the plaintiff was engaged in the course of his said employment, in removing machinery from the basement of said building, at a point two or three feet from the elevator shaft, and the elevator was at the fourth floor of the building. One of the employés of the defendant Reliance Wire & Iron Works, who was in one of the stories below the fourth, operated the cable connected with the bolts which caused the elevator to ascend or descend as desired, and the cable which unwinds when the elevator descends became unwound, but the elevator, instead of descending, was held fast in the fourth floor, by reason of the coupling iron on the regulating cable being caught on the frame of the elevator shaft, causing an obstruction to the downward passage of the elevator, and the elevator platform was also too large for the shaft. When the unwinding cable had become almost entirely unwound, the obstruction to the elevator gave way, and it fell down the shaft the entire four stories, to the basement; and by its fall the unwound cable was hurled with great force against and around the plaintiff's right leg; and, the cable immediately slacking up, he was hurled up against the ceiling of the basement between the elevator gearing, when the cable was broken, and the plaintiff dropped senseless to the base of the elevator shaft; and thereupon said elevator fell on him, whereby he sustained the injuries specified. It was alleged that the elevator at the time was not a reasonably safe appliance, and that it was defectively and improperly constructed in certain specified respects, which were the sole cause of the plaintiff's injuries; that they were within the knowledge of the defendants, but unknown to the plaintiff; that his injuries were solely caused by the negligence of the elevator company in improperly constructing said elevator as aforesaid, and in delivering it to and permitting it to be used by the defendant Reliance Wire & Iron Works before it was reasonably safe, and by the Reliance Wire & Iron Works using and operating it while it was not a reasonably safe appliance, and before it had been approved as being in accordance with its agreement with the elevator company. To the plaintiff's complaint containing the foregoing statements and allegations, the defendant the Kieckhefer Elevator Company demurred, on the ground that it did not state facts sufficient to constitute a cause of action; and from an order sustaining such demurrer the plaintiff appealed.Christian Doerfler and Geo. E. Sutherland, for appellant.

Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

PINNEY, J. (after stating the facts).

1. By the contract between the elevator company and the Reliance Wire & Iron Works, the elevator was to be held and operated by the latter upon trial, and not to be accepted and paid for until in complete running order, and defects appearing in work, material, or construction...