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Commentaries on the law of negligence in all relations online

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§ 3902. Master under What Duty of Inspection. — Considering the
very dangerous character of the machine under consideration, and the
dreadful consequences which usually result from an accident, it is
obvious that the rule of reasonable care already considered, 21 which
is satisfied with nothing less than a measure of care proportionate to
the risk or the danger to be avoided, puts upon the master an exact
and continuing duty of inspection. 22 The fact that an elevator used
by an employer in the conduct of his business is inspected at stated
intervals by city officers and by the agent of an indemnity company,
does not release the employer from his duty of making frequent ex-
aminations and applying frequent tests to the elevator to see that it
is in working order and in a safe condition. 28 If in any case an acci-
dent happens from the fall of an elevator which could have been
avoided if a reasonable inspection of the elevator had been made, the
master will be liable. 24

the elevator would not have fallen,
— it was held that this presented
evidence of negligence on the part
of the employer: Kleibaz v. Mid-
dleton Paper Co., 180 Mass. 363; s.
c. 62 N. E. Rep. 371. But it has
been held that an elevator intended
as a freight-elevator only, for use in
a storehouse, which is the kind or-
dinarily used in such places, and
which is safe when used with or-
dinary and reasonable care, was not
defective in failing to have safety-
clutches or automatic appliances to
guard against its fall if the rope
should break, so as to make the
owner liable for injuries received
by its fall, which was caused by the
engineer's carelessness in starting
it in the wrong direction when at
the top, whereby the whole force of
the engine drew it against a solid
beam and broke the rope: String-
nan v. Stewart, 111 N. Y. 188; s. c.
1 L. R. A. 483; 19 N. Y. St. Rep.
621; 18 N. E. Rep. 870.

"Ante, §§ 3772, 3895, 3896.

"Ante, § 3786.

"McGregor v. Reid 4c. Co., 178
111. 464; s. c. 6 Am. Neg N Rep. 28;
53 N. E. Rep. 323; rev'g s. c. 76 111.
App. 610; 3 Chic. L. J. Wkly. 299.

M Baltimore Boot &c Man. Co. v.
Jamar, 93 Md. 404; s. c. 49 Atl. Rep.
847; Frolich v. Cranker, 21 Ohio C.
C. 615; s. c. 11 Ohio C. D. 592. In
one State judicial complacency
seems to be satisfied with a month
to month inspection. Therefore, it
has been held that an elevator pro-

prietor is not liable for the death
of an employe 1 caused by the fall of
an elevator, where it was of a con-
struction in common use, the safety-
appliances were such as ordinarily
obtained in such structures, it was
carefully overhauled within a
month prior to the accident, and
the safety-clutch examined, oiled,
and tried by dropping the elevator,
and found to be in good order:
Biddiscomb v. Cameron, 35 App.
Div. (N. Y.) 561; s. c. 55 N. Y.
Supp. 127. Another court in the
same State was satisfied with an
inspection "from time to time," —
holding that where an employer, on
receiving possession of leased prem-
ises, had the elevator inspected by
competent experts, who pronounced
it safe, and such inspection was con-
tinued from time to time up to the
occurrence of the accident, he is not
liable for the death of an employ^,
while using such elevator, caused
by unknown defects: Sullivan v.
Poor, 66 N. Y. Supp. 409; s. c. 32
Misc. (N. Y.) 575. StAte of evi-
dence in which the question whether
the failure of an employ^ to act
with promptness in closing the door
of an elevator was the negligence
of a fellow servant of the person
injured or of the defendant, in con-
sequence of an erroneous command
given by the foreman, was not a
question of law but a question for
the jury: H. Channon Co. v. Hahn,
189 111. 28; & c. 59 N. E. Rep. 522;
aff'g s. c. 90 111. App. 256. That con-


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4 Thomp. Neg.] duties and liabilities of the master.

§ 3903. Care Bequired in the Construction, Eepair, and Operation
of Freight-Elevators. — Obviously, an employer operating an elevator
in his establishment for the carriage of freight only is not required
to exercise the extreme, exacting degree of care which the law, on
grounds of public policy, puts upon carriers of passengers; 25 but is
liable only for the failure to use what passes under the designation of
reasonable care or- ordinary care. If his employes are permitted or
required to ride upon such elevator in the performance of their duties,
then the master is required to exercise this measure of care to the
end that it shall be reasonably safe as a means of transit in the per-
formance of their duty. 26 If such an elevator is constructed to carry
freight only, this measure of care on the part of the master with re-
spect to it is not increased by the fact that his servants may, without
his knowledge and consent, ride upon it for their own convenience. 27

tractors for the construction of a
building who furnish an elevator
for the transportation of workmen
in their employ, are not liable for
the death of a workman caused by
the fall of the elevator in conse-
quence of planks having been placed
across the elevator-hole, unless the
contractors had actual or construc-
tive notice of the presence of the
planks,— see White v. Bidlitz, 19
App. Div. (N. Y.) 256; s. c. 46 N.
Y. Supp.. 184.

"Vol. Ill, § 2722, etseq.

"Vol. I, § 1081; McGregor v. Reid
&c. Co., 178 111. 464; s. c. 6 Am. Neg.
Rep. 28; 53 N. E. Rep. 323; rev'g s.
c. 76 111. App. 610; 3 Chic. L. J.
Wkly. 299; McDonough v. Lanpher,
55 Minn. 501; s. c. 57 N. W. Rep.

^Sievers v. Peters Box 4c. Co.,
151 Ind. 642; s. c. 50 N. E. Rep. 877;
8 Am. & Eng. Corp. Cas. (N. S.)
629; rehearing denied, 151 Ind. 662;
1 Repr. (Ind.) 420; 52 N. E. Rep. 399
(citing Hoehmann v. Moss Engrav-
ing Co., 4 Misc. (N. Y.) 160). One
court has held that the owner of an
elevator performs his duty, to an em-
ploye placed in charge of it, by
equipping the elevator with safety-
appliances such as are in common
use in such elevators, and would
work in case of an ordinary acci-
dent: Boess v. Clausen &c. Brew.
Co., 12 App. Div. (N. Y.) 366; s. c.
42 N. Y. Supp. 848. But it is sub-
mitted that he does not perform his

duty to his employes by providing
unsafe appliances for them to use,
though they may be in common use,
provided that safe appliances can
be obtained at reasonable cost. A
decision of the kind just stated oper-
ates to condone the negligence of
operating such an elevator with a
hook that is not capable of sup-
porting the weight of the operating-
cable, in consequence of which
the hook straightens out through
weakness and the cable falls, pro-
vided it has been inspected a week
before the accident: Bucher v. Pry-
ibil, 19 App. Div. (N. Y.) 126; s. c.
45 N. Y. Supp. 972. An employer
was held not liable for an injury to
his employ^ while riding on a
freight-elevator, used by employes,
caused by its eccentric motion, an
incline in its f oor which caused her
foot to slip, and an opening under
the gate which allowed her foot to
come in contact with the casing of
the elevator, where the elevator had
been in use for several years, was
periodically inspected, was in good
repair, and considered safe for pas-
sengers: Montgomery v. Blooming-
dale, 34 App. Div. (N. Y.) 375; s. c.
54 N. Y. Supp. 329. Compare Ma-
kinnie v. Kilgallon (Pa.), 11 Atl.
Rep. 614 (no off. rep.) (where an
elevator in much the same condition
was characterized by the court as
unfitted for the safe transportation
of human beings).


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§ 3904. Negligence in Permitting Elevator-Shafts to Remain Open
and Unguarded. — The following defects in elevators have afforded
sufficient evidence of negligence, in actions for injuries to em-
ployes, to take the case to the jury: — A spring intended automatic-
ally to lower a gate in front of an elevator-shaft being left out of
repair for three weeks after the master had been notified of its de-
fective condition; 28 where the entire front of the elevator was open,
and at the floor where the employ^ fell, the doors were open and a
wooden bar was placed across the doors about three and "a half feet
above the floor, and the horizontal edge of the wooden lining of the
shaft projected downward from above, and the operating-cable was
only a foot from the opening. 29 On the other hand, it was badly de-
cided that the owner of a chair factory was not guilty of negligence in
leaving an opening into an elevator-shaft unguarded at night, where
he had no knowledge that any one would go into the room opening
into such shaft. 80

§ 3905. Negligence in Operating Elevators. — The liability of the
master for injuries caused by negligence in operating an elevator
may, as in other* cases, be qualified by the rule which exonerates the
master where the negligence is that of a fellow servant, 81 where it is

• Larkin v. Washington Mills Co.,
61 N. Y. Supp. 93; s. c. 45 App. Div.
(N. Y.) 6.

-Dallemand v. Saalfeldt, 175 111.
310; s. c. 51 N: B. Rep. 645; 17 Nat.
Corp. Rep. 439; aff'g s. c. 73 111.
App. 151; 15 Nat. Corp. Rep. 698.
So, evidence that an employs in a
factory was told to come there in
the evening; that on his arrival the
factory was dark; that he was told
to go to a certain place for the
things which he required; that he
took a route customarily travelled
by him, which was usually the
safest and best; that while so doing
he fell into an open elevator-hole,
the railing of which had been taken
off during the day without hi?
knowledge and not put back, al-
though the attention of the foreman '
had been specially called to it; and
that the railing was fastened per-
manently with nails, and was only
taken off in case of necessity, — is
sufficient to support a finding of neg-
ligence on the part of the employer:
National Syrup Co. v. Carlson, 47
111. App. 178.

80 Jorgenson v. Johnson Chair Co.,
67 111. App. 80. With equal impro-

priety, as it seems, it was held that
a master was not negligent toward
his servant in allowing the end of
a bar designed for a barrier across
the opening of an elevator-shaft,
which was fastened to, the side of
the shaft, to become so loose as to
permit the other end to pass outside
of the hasp designed for it when the
employe 1 attempted to lower the bar
across the opening, where the condi-
tion was obvious and the employs
understood its use: Tisch v. Hirsch,
32 App. Div. (N. Y.) 635; s. c. 52
N. Y. Supp. 1076; s. c. on reargu-
ment, 34 Apn. Div. (N. Y.) 623;
53 N. Y. Supp. 926. An employ^ as-
sumes the risk of injury from the
falling of a mallet in the hands of
another employ 6, through an open
trap-door in an elevator-shaft upon
an uncovered elevator in which he
is riding, by continuing in his em-
ployment with knowledge of the
defects, even' though the employer
is required by statute to have the
elevator covered : Shields v. Robins.
3 App. Div. (N. Y.) 582; s. c. 38
N. Y. Supp. 214; 73 N. Y. St. Rep.
708; aff'g s. c. 33 N. Y. Supp. 639.
"Post, § 4846.


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4 Thomp. Neg.] duties and liabilities of the master.

that of the injured servant himself, 82 or where the circumstances are
such that the injured servant is deemed to accept the risk, under
principles hereafter considered. 82 * The doctrine of accepting the
risk does not, however, in general, apply to injuries which are the
result of negligence in operation, unless the negligence is of a per-
manent and continuing character. It is often an important question
in this case, where the injury proceeds from the negligence of an-
other servant, whether such servant is a fellow servant of the servant
who is injured, or a vice-principal of the master. This question is
taken entirely out of these cases by statutes which have been enacted
in some of the States abolishing some of the so-called "fellow-servant
doctrine" ; and it' has received an important qualification in other
cases under the operation of the so-called Employers' Liability Acts,
like that of Massachusetts, making the employer responsible for an
injury to one servant happening through the negligence of another,
when the latter is "engaged in superintendence." In this aspect of the
question it was decided in Massachusetts that the failure of the
superintendent of a factory to countermand an order given by him
for the lowering of an elevator, upon seeing that an employe^ in
ignorance of such order, was about to place himself in a position of
peril, was a negligence which pertained to his duties as superintendent,
so that, under the statute, the employer was liable to the injured em-
ploy^ in damages. 88 Outside of this fellow-servant question, evidence
of negligence on the part of the employer has been discovered in the
act of leaving unguarded a constantly-moving elevator-ahain and also
a carrying-chain at a point where the two meet on the surface of the
floor and run over a sprocket-wheel projecting just above the surface
of the floor, beside which an inexperienced employ^ seventeen years
old is required to work. 84

"Vol. V, Contributory Negli- In, where two sides of it were un-

gence of the Servant. inclosed, and between two of the

"aPofft, § 4608, et seq. floors an iron girder extended into

"Cavagnaro v. Clark, 171 Mass. the elevator-shaft very near the

357 ; s. c. 50 N. E. Rep. 542. For elevator-platform when it wa» on a

a case in which the contrary con- level with the girder; where the

elusion was reached, the negligence .elevator-shaft was dark, so that the

being that of a "second hand" in protruding girder could not be

the spinning-room of a mill ap- readily seen; and the servant, in

pointed to look after the employes, the course of his employment, while

— see Sullivan v. Thorndike Co., 175 taking a truck-load of goods up on

Mass. 41; a. c. 55 N. E. Rep. 472. the elevator, came in contact with

M Klatt v. N. C. Foster Lumber the iron girder and was injured;

Co., 97 Wis. 641; s. c. 73 N. W. and the master did not warn the

Rep. 563. In like manner the ques- servant of the existence of the

tion of the master's negligence was girder or of the danger therefrom,

for the jury where he, being the and he did not know of the fact:

owner of a building in which his Olson v. Hanford Produce Co., Ill

servant was set at work, main- Iowa 347; s. c. 82 N. W. Rep. 903.

tained a platform elevator there- For another case, where a painter


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§ 3906. Violation of Statutes and Municipal Ordinances Respect-
ing Elevators. — On a principle already considered, 85 the violation of
a statute or valid municipal ordinance enacted to promote the safety
of those using elevators in buildings, is either negligence per se,** or
prima facie evidence of negligence taking the question to the jury. 87

employed by a contractor was en-
gaged in painting the windows on
an upper floor in an elevator-shaft
of the defendant's building, which
shaft contained two elevators, and
it was agreed that the defendant's
servant in charge of the elevator,
who had been employed but two
days, should shout a warning be-
fore moving it, but the elevator
was moved, and the painter was
struck by the counterweight, and
the evidence was conflicting
whether the warning had been
shouted, and the conclusion was
that the question of negligence of
the defendant and of the contribu-
tory negligence of the plaintiff was
for the jury, — see Bower v. Cush-
man, 66 N. Y. Supp. 1103; s. c. 55
App. Div. (N. Y.) 45. A contrary
conclusion was reached, and the
owner of the building was exoner-
ated, where some workmen, after
their foreman had informed the su-
perintendent of the building that
they were about to commence work
at a certain point, and requested
him not to lower the elevator, built
their scaffold through the loop of
a rope suspended to the bottom of
the car and attached to the side of
the shaft; so that, the elevator hav-
ing been raised, it overturned the
scaffolding which they had thus
built: Simpson v. Gefken, 19 App.
Div (N Y.) 68; s. c. 45 N. Y. Supp.
110u. For a case where a mes-
senger-boy was hurt in trying to
operate an elevator himself, and it
was held that no negligence on the
part of the defendant was shown,
—see Young v. Eugene Dietzgen
Co, 72 Apu. Div. (N. Y.) 618; s. c.
~S N. Y. St. Rep. 123.

"Vol. I, § 10. et seq.

"Wendler v. People's House Fur-
nishing Co., 165 Mo. 527; s. c. 65
S. W. Rep. 737 (failure of an em-
ployer to provide barriers for an
elevator-shaft as required by ordi-
nance, or, where he has provided

them, his failure to keep them
closed when the shaft is unused,
is negligence).

"H. Channon Co. v. Hahn, 189
111. 28; s. c. 59 N. E. Rep. 522
(violation of a city ordinance pro-
viding that every person owning or
operating any freight-elevator in
any building within the city shall
employ a competent person to take
charge of and operate the same).
A depression in the floor of a mill
of the depth of the floor, made by
an opening in the. same at a place
where the elevator passed up and
down, the opening being closed by
an automatic slide, was not a viola-
tion of a statute declaring that all
hoistways and elevators on every
floor of a factory shall be protected
by sufficient trap-doors or self-clos-
ing hatches: Hoard v. Blackstone
Man. Co., 177 Mass. 69; s. c. 58 N.
B. Rep. 1*80. Where a city ordi-
nance requiring elevator-shafts to
be guarded provided that parties
maintaining such shafts should be
notified to furnish barriers, and
should not be in default on failure
to provide them until thirty days
after notice, no notification was re-
quired to a party who had provided
such barriers, but failed to keep
them closed when the shaft was not
in use: Wendler v. People's House
Furnishing Co., 165 Mo. 527; s. c.
65 S. W. Rep. 737. A city ordinance
providing that users of all power
elevators should employ competent
persons to operate the same, did
not apply to a case where one us-
ing an elevator in his place of busi-
ness employed no particular person
to operate it, and a servant, while
attempting, without being request-
ed, to raise the elevator from one
floor to another, was killed by be-
ing caught between the ascending
automatic safety-gate and the ceil-
ing: Stagg v. Edward Westen Tea
&c. Co., 169 Mo. 489; s. c. 69 S. W.
Rep. 391.

VOL. 4 THOMP. If EG. — 11


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4 Thomp. Neg.] duties and liabilities of the master.

§ 3807. Injuries to Volunteers, to Intermeddlers, to Licensees, etc. —

The doctrine that the master is not liable to his servant for an injury
received from an elevator in the master's building with respect to which
the servant has stepped outside the line of his duty and assumed the
position of a trespasser, volunteer, intermeddler, or bare licensee,
seems to be the same as that applied in other relations. 88 The master
is not bound to take special precautions for the safety of such persons,
but if they improperly thrust themselves into this species of danger
they take things as they find them, and if they are hurt the master
will not, in the absence of special circumstances, be liable. It was so
held where a boy fifteen years old was killed while attempting to
operate an elevator, which was no part of his business, and he was
.warned by a sign posted in plain sight, and he had been specially
warned; 88 where a boy under fifteen years of age employed as an
errand-boy, instead of placing a package on the lift to be raised to the
level of the street and signalling to the engineer to start- the lift,
got upon it without any suggestion from any one and started it, and
sustained injuries in trying to stop it, — the master not being liable un-
der a statute providing that no child under fifteen years of age should
be permitted to have the care or management of an elevator ; nor was
he guilty of any negligence ; 40 where a person was employed by a con-
tractor to paint the elevator-shaft of the defendant's elevator, which
work was to be done after business hours, and while standing on the
elevator-cage, which was to be gradually lowered as the work pro-
gressed; and when about to commence work the elevator-boy was
going to supper, and, the plaintiff objecting to waiting until his return,
the boy told him that he might operate the cage himself by pulling
the ropes while on top of it ; and he attempted to do so and got hurt. 41
Where an employer allows his employes to use an elevator as a means
of transportation, then they do not stand towaid him in the relation
of trespassers or intermeddlers, but the law requires him to exercise
reasonable care and caution in their behalf, both in the construction
and in the operation of the machine. 42 But the exercise of the care
a master ordinarily owes his servant, and not that extreme care
which is required of a common carrier of passengers, is the limit of
his obligation to his employes who are permitted, but are not required,

"Vol. I, SS 945, et seq., 1075; Vol. "Arzt v. Lit, 198 Ba. St 519;

II, S 1705, et seq.; ante, ft 3748, et s. c. 48 Atl. Rep. 297 (here, as the

seq.; post, § 4677, et seq. boy had no authority to transfer

"Hyde v. Mendel, 75 Conn. 140; the running of the elevator to the

s. c. 52 Atl. Rep. 744. plaintiff, the defendants were not

"Young v. Eugene Dietzgen Co., liable).

72 App. Div. (N. Y.) 618; s. c. 76 "Frolich v. Cranker, 21 Ohio C.

N. Y. Supp. 123. C. 615; s. c. 11 Ohio C. D. 592.


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in going up to or down from the different stories of the building in
which they respectively work,, to use a freight-elevator. 48

§ 3908. Notice to What Servant of a Defect in an Elevator Binds
the Master. — Where a shipping-clerk had charge of the employes of
a milling company, and the plaintiff was employed as a porter, and
the clerk directed the plaintiff in the use of an elevator, notice to the
clerk of a defect in the elevator in consequence of which the plaintiff
was injured, was notice to the defendant. 44

§ 3900. Whether the Fall of an Elevator is Prima Facie Evidence of
legtigence under the Rule of Ees Ipsa Loquitur. — By an analogy to
the rule which obtains with respect to carriers of passengers, 45 the fall-
ing of an -elevator in a building would, under the rule of res ipsa loqui-
tur, afford prima facie evidence of negligence which would put upon
the master the burden of explaining the accident so as to exonerate
himself. But it will not escape attention that this rule of evidence is
to some extent a rule of public policy when applied in the case of in-
juries to the passengers of common carriers. It may or may not apply
in the case where a servant receives an injury from the fall of his mas-
ters elevator, since many obscure causes involving no negligence im-
putable to the master might operate to produce such a catastrophe ; and
hence the servant is generally required to go further and prove some
negligent act or omission on the part of his master or on the part of
some one for whose conduct his master is responsible, acting as a suffi-
cient cause of the accident. 46 Decisions of the tendency here indicated

"McDonough v. Lanpher, 55 statement of the text, a case where
Minn. 501; s. c. 57 N. W. Rep. 152. a servant was killed by the unhook-
That a conductor of a freight-ele- ing of a rope that was holding a
vator is not, as a matter of law, mass of timber up against a pul-
negligent in allowing other em- ley-block, and there was no evi-
ptoyfe engaged with him in nan- dence as to what caused the hook
dling freight to go upon the eleva- to loosen its hold around the rope,
tor, notwithstanding a notice that and consequently no ground on
riding on. the elevator without per- which blame could be imputed to
mission is strictly forbidden, where the master: Pioneer Fire Proof
employes had frequently ridden Const. Co. v. Sandberg, 98 111. App.
with the knowledge and consent of 36. Where a hoisting-cage had been
the employer, — was held in Boess used for several years with a guard-
t. Clausen 6c. Brew. Co., 12 App. rail on three sides of it only, and
DiT. (N. Y.) 366; s. c. 42 N. Y. had formerly had no guard-rails at
Snpp. 848. all, proof of (he death of an em-

" Larkin v. Washington Mills ploye* by falling from it was deemed

Co., 61 N. Y. Snpp. 93 ; s. c. 45 App. not sufficient to take to the jury

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 27 of 165)