
    Sinton v. Butler.
    S., the owner of a block of three buildings containing separate elevators operated by an engine placed in the rear of one of them, leased to T. H. & Co., another of them, stipulating that the lessees should have possession of the premises ; they agreeing with care and diligence to keej> the same in good order and condition during the term, they to pay to S. quarter yearly the cost of keeping in good order all the parts of said elevator contained in said leased premises and one-tlxird of the expense of running said engine. S. employed and paid the engineer to work for the block so leased, but did not interfere with or supervise his work ; made repairs to the elevator when notified of their necessity by the tenants, and was reimbursed by the tenants quarterly. Prior to the termination of the lease the parties agreed to extend it, S. undertaking that from January 1, 1874, he would “ at his own cost keep the elevator in said property in repair providing the lessees hereto use proper and judicious care in the use of the same.” After January 1874, the only change in conduct was that S. did not call upon the lessees for reimbursement for such repairs. On Aug. 11, 1874, the rope broke, the elevator with B., an employd of the lessees upon it, fell, and B. was injured. S. had not been notified that any repairs were needed. The engineer as he oiled the machinery had opportunity to see it. The elevator was exclusively operated by the lessees and their employes.
    
      Held: 1. S. was not at the time of the accident in possession and in control of the elevator nor was he conducting or operating it.
    2. The fact that the engineer so employed had opportunity to see the machín ery was not notice to S. of the need of repairs.
    3. It -was the duty of the court to construe the terms of the contract bearing upon the relation of the parties to the machinery, and it was error to refuse to give to the jury pertinent and proper instructions as to the legal effect of those terms.
    Ekiiok to the Superior Court of Cincinnati.
    By lease dated November 20, 1869, David Sinton rented for three years, beginning January 1, 1870, to Pearce Tolle & Holton, a four story stone front building on Yine street, Cincinnati, together with a defined portion of the yard in its rear, to be used for the purpose of carrying on the wholesale dry goods business. Stairways led from each floor to the one above it, and a hoisting apparatus composed of a platform raised and lowered by a wire rope passing over shears above and a drum below, and operated by steam, was provided for raising and lowering goods. This building was one of a block of three, and the engine, by which the hoisting apparatus in each was worked, was placed in rear of the basement of the building south of said leased premises. A common shaft ran from the engine room through the three stores, through the walls. An engineer employed by Sinton had charge of the engine and boilers, and oiled such parts of the hoisting apparatus in each building as required it. The hoisting apparatus was operated bjr the person upon it who desired to go up or down ; when he pulled down the platform ascended. The lease provided that the lessees should “pay quarter yearly during said term the cost of steam heating and hoisting for said .premises, which shall be one-tliird of the expense for running engine for steam hoisting for the three buildings known as the Sinton Block of which this is one, and keeping the same and the machinery and boilers therewith connected in good order and repair; and one-third of the cost of steam heating for said block; and the total cost of keeping in good order all the parts of said hoistiug and heating apparatus contained in the said premises hereby'’ leased, and all charges for water and gas for same as they may become due and payable.” In the next paragraph of the lease the lessees covenanted '■'■that they and their assigns will with care and diligence keep the same ” (premises) “ in good order and condition during said term, and at the termination thereof will quit and surrender the same to the said Sinton or assigns in like good order and condition, careful wear and fire only excepted
    
    And Sinton covenanted that the “ lessees shall have peaceable possession and quiet enjoyment of the premises hereby demised during the term of three years herein above specified.” By writing of October 28, 1872, the lease was extended for a fourth .year, and by writing on September 17, 1873, it was again extended for three years from January 1, 1874, Sinton agreeing to “at his own cost keep the elevator ip said property in repair, providing the lessees hereto use proper and judicious care in the use of the same.”
    In using the elevator it wa¡^ necessary for some person to go upon it with the goods from floor to floor. In the afternoon of August 11, 1874, W. N. Moore, a salesman of the lessees, was upon the elevator with a truck and goods to be hoisted. As he was about to start upwards the plaintiff, Thomas Butler, and a Mr. Druden, employés of the lessees, stepped upon the platform for the sole purpose of being taken to a floor above. As the platform was ascending the wire rope parted, and they all fell to the basement. The plaintiff was seriously injured infoot, ankle,leg, &c.; was sick for, months; lost wages, incurred expense, suffered pain, &c., &c. He sued Sinton, alleging the covenants of the lease and its extension, that he was clerk to lessees, “ that it became and was necessary in the transaction of his business as salesman to pass from one floor of said building to the other, and that the passage was usually accomplished by the use of the elevator and hoisting apparatus erected'and used in said building and operated and controlled by said defendant, that being the most common, and the usual and customary means used in passing from one floor to another in said building.” He also charged the defendant with negligence and carelessness in building and constructing said hoisting apparatus and in operating the same; “that it became and was out of repair and wholly unfit for the use for which they were constructed and used ; that the defendant well knowing the premises permitted it to become so much out of repair and in siich bad order and condition-that it broke and gave waju without fault or neglect on plaintiff’s part ” and injured him as aforesaid.
    The defendant by answer as a first defense denied that the “boilers, engine and hoisting apparatus were in the possession of, and under the control of and operated and conducted by the defendant when the accident occurred set out the lease and its extensions, denied, any other contract; admitted that plaintiff was in lessees’ employment and that he used the elevator as their clerk and salesman. The second defense denied all carelessness and negligence, denied that the apparatus was out of repair, denied knowledge, &c., making direct issues with all averments in the petition as to those matters. The answer was silent as to the statements in the petition touching the usual and customary use of the elevator, and the allegation that plaintiff was without fault or neglect was not denied.
    At the trial the plaintiff offered evidence tending to prove that the sheaves over which the wire rope passed were so small that the wires were liable to break, thereby weakening the rope; that it needed repairs; that the springs, for holding the platform in case the rope should break, were defective and insufficient; that Sinton knew, when he originally ordered it, that it was not so good an elevator as one of another plan then in use in Cincinnati, and that his engineer had opportunities for knowing that the rope was too weak for use.
    Sinton offered evidence tending to prove that the elevator was good of its kind; that it was of a kind generally used; that he did not know that it was not so good as another one then in use in Cincinnati for such purposes; that the sheaves were of a proper size, and the rope in good condition, and that neither he, nor the engineer, had knowledge or notice that it was out of or needed repair. .There was no controversy but that it had been used from January, 1870, until August 11, 1874, without accident; that the rope had been repaired at least twice, being once turned end for end, and that it did not break at either of the places at which it had been repaired.
    Evidence was conflicting as to the cause of the break.
    So much of the charge to the jury as did not relate to the conduct of the plaintiff below was as follows:
    “ Mr. Sinton had leased to Tolle, Holton & Co. the store on Vine street, and also leased to them, for receiving and discharging merchandise, the use of so much of the yard as was in rear of store, and by the terms of the lease, as extended, the lessees were to pay quarter yearly the cost of steam heating and hoisting for said premises, being one-third of the expense of running the engine for steam hoisting for three buildings known as the Sinton block, and keeping the same and the boilers therewith connected in good order and repair, — Mr. Sinton, at his own cost, to keep the elevator in property so leased in repair, providing the lessees used proper and judicious care in the use of the same.
    “The lease does not fix and determine the manner of running the hoisting apparatus and machinery, the situation of boiler and engine, or the mode of employment of the engineer. Testimony was offered as to these matters.
    “ If, upon the testimony in connection with the stipulations of the lease, it appears that Mr. Sinton, for the convenience of the lessees, and on their behalf acting for them, hired the person who ran the apparatus, and advanced the cost of running it, and so ascertained for the lessees what amount each was to pay; then, as it also appears in evidence that Mr. Sinton was not notified of any defect, he is not liable to the plaintiff for damage resulting from defects in the elevator, notwithstanding his agreement to keep the elevator in repair at his own cost.
    “If, on the other hand, it appears that Mr. Sinton had the control, direction and management of the machinery, so that in connection with his agreement to keep the elevator in repair, he did not merely lease an elevator, but he undertook to supply transportation or carriage, then he is liable for damage happening to the plaintiff by reason of mismanagement on the part of Mr. Sin ton’s employ é in charge of the steam hoisting apparatus, or by reason of any defect in said apparatus known, or that ought to have been known to such employé.”
    Sinton excepted to the paragraph beginning “ If, on the other hand,” and asked the court to give to the jury each of the following instructions:
    
      First. We ask the court to charge the jury that if the plaintiff was in the employ of Tolle, Holton & Co. at the time of the injury, and had been ever since the building in question was erected in 1869, and that said firm had had the entire and exclusive use and occupancy of the building in question, and of the elevator, during all that time, the defendant having no right to use or occupy any of it in any way, then the plaintiff cannot recover in this action.
    
      Fourth. That the fact that there were boilers and an engine in an adjoining store, which created the power to run the elevator in question and heat for the store in question, and two other stores just like it; and that the defendant hired the engineer and paid for the running of it and the fuel, upon the agreement contained in the lease that the said Tolle, Holton & Co. should pay for all such services, this did not give the use of any portion of the building or elevator in question to the defendant or deprive said Tolle, Holton & Co. of the exclusive occupancy of it.
    
      Fifth. If the elevator was one which had daily run securely for four or five years in the store, and the plaintiff and all others had full opportunity of seeing it and knowing how it worked, and was an elevator in common use with others at the time, and the defendant knew of no defect in it but believed it to be safe and secure, the defendant could not be made liable in this action simply because the jury may think there was a better or more secure elevator that might have been put into the store when put up.
    Each and all of which charges the court refused to give, and Sinton duly excepted to said refusals.
    The verdict was against Sinton. His motion for a new trial was overruled — a bill of exceptions containing all the testimony, the charge — the rulings on evidence and- the exceptions were duly made part of the record. The superior court in general term affirmed the judgment, and Sin-ton asks this court to reverse the judgments below.
    Lincoln, Smith Stephens and J. F. Baldwin, for plaintiff in error.
    The plaintiff in error was not in possession, nor did he have control or management of the elevator at the time of the accident. Burdick v. Cheadle, 26 Ohio St., 396; Rich v. Basterfield, 4 Mun. Gran. & S., 802, 803; Barrett v. Singer Mfg. Co., 1 Sweeney, 547.
    No one can take advantage of a .covenant, but the parties 'and privies. BlaeJcmore v. B. B. Railway Co., 8 Ellis & B. , 1047; Winterbottom v. Wright, 10 Mees. & Weis., 114, 115; Barrett v. Singer Mfg. Co., 1 Sweeney, 547, 548; Robbins v. Mount, 4 Robertson, 564; Flynn v. Hatton, 43 How. Pr. R., 348, 357. '
    Notice must have been brought home to Sinton of the insecure condition of the elevator. Makin v. Watkinson, 6 L. R. Ex., 25.
    
      Paxton Warrington and C. B. Matthews, for defendant in error.
    The case in bar differs from the case in the 26th Ohio St., in this, that said Sinton was furnishing transportation to the lessee and their employes and was, to the extent necessary to carry out his portion of the contract,in possession.
    See Sherman & Redfield on Negligence, sec. 502; Taylor v. New York, 4 E. D. Smith, 559; Canavan v. Conkling, 1 Daly, 509 ; Looney v. McLean, 129 Mass., 33; Reedman v. Comvay, 126 Mass., 374; Stratton v. Staples, 59 Maine, 94; Clapp v. Kemp, 122 Mass., 481; King v. Pedley, 1 Adolphus & Ellis, 122, per Taunton, Justice; Campbell v. Portland Sugar Company, 62 Maine, 552.
    
      Stewart v. Harvard College, 12 Allen, 58; McCutrick v. Wasson, 4 Ohio St., 566; 125 Mass., 487; 56 N. Y., 124; Devlin v. Smith, 89 N. Y.,, 470; Wharton on Neg., § 137, et seq.; Id., §§ 445-9, 547; 1 Hilton, 436; 15 Wend., 522; 2 Comstock, 185; Pippin v. Shepperd, 11 Price, 400; Marshall v. Railroad Co., 11 C. B., 65; 16 Ad. & E. (N. S.), 984; 2 Dowling & Ry., 33; Perry v. Smith, Law Reps., 4 C. P. D., 325; Collis v. Selden, Law Reps., 3 C. P., 495. Dalgell y. Tyrer, Ellis, Blackburn & E., 898; 8 111. App., 217 ; 45 111., 444.
    Sinton was 'certainly bound by anything that he or his servant, the engineer, either knew or ought to have known. See Malone v. Hathaway, 6 Thomp. & Cook, 1; Waldon v. Finch, TO Penn. State, 460; Ryan v. Fowler, 24th N. Y., 410, see foot of page 413; Gray v. Boston Light Company, 114 Mass., 149 ; Losee v. Buchanan, 51 N. Y., 476; Cochran v. Holhroolc, 59 N. Y.,-547.
    
      Matthews, Ramsey Sp Matthews, also for defendant in error.
   Granger, C. J.

Numerous errors are assigned, but notice will be taken only of the instructions to the jury given and refused.

The lease with its extensions was before the jury containing important provisions bearing upon the question, “ Was Sinton in control of the elevator when it fell ? ” but the court said no word to the jury as to the meaning of any elause. By express terms the lessees were guaranteed possession of the demised premises during the term, and were burdened with the duty of “ with care and diligence ” keeping the same in good order and condition during the term from January, 1870, until January 1,1874, when Sin-ton agreed to keep the elevator in repair, “ providing the lessees hereto use proper and judicious care in the use of the same.”

It seems plain that down to January 1, 1874, Sinton had no right to enter the premises against the will of the lessees. Upon them rested the duty of taking care that the entire premises should be kept in good order. To that express covenant the preceding stipulation that they would pay quarter yearly the total cost of keeping in good order “ all the parts of said hoisting apparatus contained in the said premises hereby leased” must yield. The one by plain words placed the responsibility for all care and diligence necessary to keep the entire premises in good order on the lessees. The other by implication only, tended to put upon Sinton responsibility for the elevator. In order to fulfil the promise to with care and diligence keep the premises in good order and condition,” the lessees were bound to malee all repairs except those required by the elevator, and to duly notify Sinton whenever the elevator required repairs. It was the duty of the court to construe the written contract for the jury. Until they knew what it meant, standing alone, they could not properly apply the evidence as to the conduct of the parties. Prior to 1874, the true meaning of the lease was a renting to the lessees of a building, including an elevator, and also the services of an engineer selected and paid by Sinton. The lessees had entire possession, with the entire duty of using care and diligence to keep the entire leased premises in good order. If repairs were needed by the elevator it was for them to notify Sinton, and his duty to then advance the money to pay for them ’ as made — the lessees reimbursing him at the end of the quarter. This construction gives effect to both clauses in the lease, and is reasonable in itself. The wire rope, the part of the apparatus most liable to get out of order, was before the eyes and in the hands of the lessees and their employés every day; the lessees were to pay for the repairs; they and their emploj'és were most directly interested in its being maintained in good order, and had the best means of learning when repairs were needed. Any suspension of the use, for repairs, affected their business. Neither Sinton, nor the engineer, could suspend that use without the lessees’ consent. Sinton was distant; the engineer’s usual post was in another building.

The testimony touching the course of dealing of the parties prior to 1874, accords with this construction. While Sinton employed the engineer, he referred him to the tenants as the persons for whom he was employed. To them the engineer sent persons having bills for repairs, and to them he applied for an increase in his •wages. Sinton did not examine, either in person or by agent, as to the need of repairs for the machinery. The tenants notified him when they were needed; then he caused them to be made and paid for them, — they refunding. During the first four years of the lease there is no proof of any conduct of the parties indicating that Sinton was to make any repairs to the elevator except when notified by the tenants.

Did his agreement to “ at his own cost keep the elevator in repair, providing the lessees were to use proper and judicious care in the use of the same,” place him in control of the elevator after January 1, 1874? Standing alone the words may imply soniewhat in that direction. But the express words giving to the lessees possession of the whole-premises remained unaltered. Give full effect to them, and the new stipulation bound Sinton to make such necessary repairs to the elevator as the tenants should call for at Ids own cost. The testimony showed no change in the course of dealing after January 1, 1874, except that Sinton did not, at the end of the quarter, collect from the' lessees the expense incurred about the elevator.

The omission by the court of a construction of the lease and its extension, was calculated to mislead the jury. In effect it told them that the terms of the lease and its extension could not materially aid them in making a verdict.

The first instruction asked for by Sinton should have been given. It was germane to the true construction of the lease as extended and the conduct of the parties.

The fourth instruction asked for was proper as a part of a construction of the contracts.

The fifth instruction asked for was pointed at certain evidence put in by the plaintiff, of a character likely to mislead the jury, and was proper in itself. Although it contained a few words bearing more strongly against Sin-ton than the law required; with his express consent the court could rightfully include them.

The evidence set out in the bill of exceptions seems to us clearly insufficient to prove that “ Sinton had the control, direction and management of the machinery, so that in con-. nection with his agreement to keep the elevator in repair, he did not merely lease an elevator, but he undertook to supply transportation 'or carriage.” On the contrary, we think it showed, that, in addition to renting the premises, Sinton undertook to furnish to the lessees an engineer, to advance tlie moneys required to pay for operating and running the machinery, and to make such repairs thereof- as the tenants should call for; they agreeing to use diligence and care in seeing that all proper repairs should be made or called for; and that Sinton made all repairs called for by the tenants.

The claim of the plaintiff that Sinton was at fault in originally placing that elevator in the building, must yield to the uncontested facts that it was of a plan somewhat generally in use, and that itself was in constant use for well nigh five years without accident. It follows, then, that as Sinton was not in fault in originally placing the elevator in the building; as he made all repairs called for, and was not bound to do more, and as he was not in possession or control of, or managing the elevator, when it fell, the case does not call for comment upon the numerous authorities cited by counsel.

Judgments reversed.  