
    10890
    MEDLOCK v. McALISTER
    (112 S. E. 436)
    Í. Landlord and Tenant—Landlord Not Common Carrier in Operating Elevator, and Owes Tenant Only Ordinary Care__A landlord whose tenant was injured by reason of a defective and negligently operated elevator, was not a common carrier of passengers for hire, and hence did not owe plaintiff the highest degree of care, but ordinary and reasonable care, in consequence of the relation of landlord and tenant.
    2. Landlord and Tenant—Nonsuit Properly Refused, Where There is Testimony Tending to Prove Allegations of Negligence.—In an action for injuries to a tenant by reason of a defective and negligently operated elevator, where there was testimony tending to prove his allegations of negligence, the Court properly refused to grant a nonsuit or direct a verdict for defendant, though there was evidence to the contrary; the weight of the testimony being for the jury-
    Before Prince, J., Greenville, April, 1921.
    Affirmed.
    Action by J. B. Medlock against Charles McAlister. Judgment for plaintiff and defendant appeals.
    Note: On liability of landlord for injury to servant of tenant by elevator, see note in L. R. A., 1916, F. 1146, 1147.
    
      
      Messrs. Martin & Blythe, for appellant,
    cite: Degree of care required of owner of building toward a tenant in operation of elevator: 9 Cooley Torts (3rd Ed.), 1378;9R C. E., Sec. 2; 166 N. Y., 188; 52 R. R. A., 922; 88 Am. St. Rep., 384; Ann. Cas., 1915B, 568; 2 R. R. A. (N. S.), 744; Ann. Cas., 1914B, 308. No evidence of defect or negligence: 52 R. R. A., 928. And negligence will not be assumed from fact that appliance failed or broke in use: 69 S. C., 529; 66 S. C., 256; 72 S. C., 398; 75 S. C., 102; 97 S. C., 112. Bven if relationship was carrier and passenger nonsuit should have been granted: 82 S. C., 345; 77 S. C., 148.
    
      Messrs. J. J. McSwain and J. Robert Martin, for respondent,
    cite: Owner of building is carrier in operation of elevator: 10 A. & E. Ene. R. (2nd Ed.), 946. And such as is charged with highest degree of ccni'e for the safety of passengers: Ann. Cas., 1915B, 570; Hutch. Carriers (3d Ed.), Sec. 100; 1 Thomp. Neg. Sec. 1078; 9 R. C. R., 1250; 107 0S. C., 1. Nonsuit improper: 42 S. C., 466; 76 S. C , 63 ; 7Í S. C., 156; 103 S. C., 327; 86 S. C., 304; 98 S. C., 129; 86 S. C., 231; 74 S. C., 90; 83 S. C„ 272; 110 S. C„ 566; 69 S. C., 107; 75 S. C., 156; 94 S. C., 412.
    May 25, 1922.
   The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from a judgment, entered up for $2,500 actual damages on verdict of jury. The cause was tried before Judge Prince and a jury at the April term of Court, 1921, for Greenville County. The exceptions, two in number, subdivided, allege error on the part of his Honor in not granting a motion made by the defendant for nonsuit, or to direct a verdict for the defendant on the grounds on which it was made.

The action was for damages for personal injuries, and the complaint alleges two acts of negligence, “furnishing a defective and unsafe elevator,” and “negligence in the operation of the elevator.” On the motion for nonsuit it was contended that by reason of the relationship of landlord and tenant ordinary care only was due; the respondent contending that the duty owing was that of carrier and passenger, the highest degree of care.

The court overruled the motion for nonsuit, but ruled that the defendant was not a common carrier of passengers for hire, and for that reason owed the respondent only ordinary care. In this his Honor was correct. The appellant, under the evidence developed, did owe the respondent ordinary and reasonable care, and his Honor was correct in submitting this issue to the jury, which he did, in a clear and comprehensive charge.

There was testimony tending to prove the allegations of negligence, as set forth in the complaint, on the part of defendant, even though there was a conflict between the witness of plaintiff and defendant. The jury was to determine the weight of such testimony, and his Honor committed no error in refusing to grant a nonsuit or to direct a verdict as .asked for.

All exceptions are overruled, and judgment affirmed.

Chiee Justice Gary, and Messrs. Justices Cothran and Marion, concur.

Mr. Justice Fraser

(concurring) : .1 concur with Mr. Justice Watts.

It is not denied that the plaintiff was injured by the elevator. I see no question of law in .this case. The exceptions raise only a question of fact. The specifications of negligence ,are a defective elevator and negligent operation of the elevator. It is immaterial whether the plaintiff’s foot was injured by the floor of the second or third floor. The undisputed fact is that he was injured by the elevator. There is evidence to show that the elevator was in the habit of falling several feet, and that the defendant admitted that he had had trouble with it. There is evidence to show that the elevator, either from a defect in the machine or its operation, was causing trouble, and the defendant knew it. There was expert evidence that the elevator could in no event fall more than 11 feet. There was no positive evidence that as a matter of fact it did fall 30 feet. That was a question for the j ury. The defendants’ witness said:

“If I were to see an elevator fall 2 or 3 feet, I would think something was absolutely wrong. I have never seen it in 35 years’ experience.”

There was positive evidence that it did fall repeatedly.

For these reasons, I concur with Mr. Justice Watts.  