
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    Court, — Oct. Term, 1898.)
    Before King, Haynes, and Parker, JJ.
    ALBERT S. MILLER v. THE LOZIER MFG. CO.
    
      Injury by defective elevator — Facts under which plaintiff not entitled to recover—
    One employed as manager of the retail business of a manufacturing company, but without power to order changes or repairs about the premises, without first obtaining instructions from the company, can not recover for injuries sustained from a defective elevator, where it appears, that on notifying the company of the defective condition of the same he was instructed to have it repaired, which he neglected to do; that in using the elevator he failed to resort to an appliance which he knew controlled the movements of the elevator and was in perfect condition, and would have avoided the accident; and that he might as well have avoided the use of the elevator knowing it to be dangerous, by ascending the stairs.
    Error to the court of Common Pleas of Lucas county.
   PARKER, J.

This is an action brought by the plaintiff in error to reverse the judgment of the court of common pleas, dismissing his petition.

Albert S. Miller began an action in the court of common pleas against the Lozier Manufacturing Co., and in his petition alleges that the defendant is a manufacturing corporation doing business in the city of Toledo, and for his cause of action he says, that on or about the 3d day of December, 1895, he enter-; ed into the services and employ of said defendant at the stipulated sum and amount per month of $83.33. That date is probably misstated in the petition, as it appears from the contract introduced in evidence, and from the testimony, it was the 3d day of September, 1895.

“That his duties as sueh employe consisted in taking charge of and the conducting of, for the benefit of said defendant and its profit the retail store and business of said defendant located in the city of Toledo as aforesaid under and pursuant to the directions of said defendant, which said employment was to continue until September 1st, 1896. That under .and pursuant to said employment, be entered upon his duties as aforesaid on or about the 3d day of September, 1895, and continued in the discharge thereof to and until on or about the 6th day of March, 1896, when said plaintiff was injured as hereafter set forth. That said business consisted in the sale of bicycles,bicycle sundries, fixtures and repairs and all accessories necessary to such business, and was carried on at and in the defendant’s retail store on St. Clair street, in said city of Toledo, in a building consisting of three stories. In the upper story thereof, as a part of and accessory to said business, there was a riding and training school, or academy, for the purpose of instructing persons purchasing bicycles of said defendant company, in and about the riding and using thereof, and as a part of plaintiff’s said duties, it became and was necessary lor him to, when called upon by parties wishing his assistance, or when he deemed it advisable, to go to the third or upper story of said building used as such riding or training school as aforesaid. That as a part of the necessary machinery and appliances for carrying on the business of said defendant as aforesaid, the said defendant company had placed in said building an elevator for the carrying of freight, passengers, and all other things necessary in and about the promotion of their said business, from the basement and salesroom in said building to the riding academy located on the third floor thereof as aforesaid. * * * The plaintiff further says that said elevator was of a kind and make that was designed and intended to automatically stop at the respective floors of said building in its ascent and descent., but the plaintiff says that the said elevator was defective in this, that it failed to, by careful and perfect operation, work as it was intended and supposed to, in that it failed at various and many times prior to the injury herein complained of, to stop automatically as it was designed to.”

That he could not tell what the particular defect was, being unacquainted with machinery of that character.

“That as soon as he discovered said elevator was defective in its operation as aforesaid, he notified C. J. Moore, then and there the treasurer and-general manager of the defendant company, who then and there promised plaintiff that said elevator would be by defendant repaired, and said and stated to plaintiff to go ahead, and he, said Moore, would have said elevator repaired.”

That the defendant failed to have said elevator repaired as promised, and thereupon plaintiff notified W. H. Raynor, and Raynor promised that said elevator would be attended to and 'repaired, and the defect remedied, and the elevator should and would be made to operate properly. Plaintiff says that he had no knowledge whatever with reference to the intrica cies of the different parts of said elevator, and no knowledge of the manner in which it had been placed in said building. That he relied upon the promises made, and continued in the service of the defendant and the operation of the elevator until the 6th day of March, 1896, when the accident occurred. That on the 6th day of March, while in the performance of his duties in and about the service of the company, he had occasion to use the elevator in ascending to the riding academy; that in thus ascending plaintiff used due caution and care in the management of the elevator,—

“And without any fault or negligence on his part, said elevator failed to stop at the third floor of said building, but continued in a rapid manner in its upward course until'it reached the roof of said building with such force, and with the force still being applied to the cable, that it caused the spool around which said cable was wound to break, and said cable became and was broken and detached, so that said elevator, with this plaintiff at the time thereof standing in and upon the same, and without any opportunity for him to escape therefrom, was released and rapidly precipitated and fell ;o the floor in the basement in said building with this plaintiff therein. ”

Then he proceeds to state the injuries which he received from the fall, which appear to have been of a very serious and of a permanent character, and prays judgment for bis damages, which he fixes at $30,000.

The defendant company answers to this amended petition, admitting the allegations, as to its being a corporation, the business in which it was engaged,and'says that it is “advised that the plaintiff was injured through the falling of an elevator in the said retail store on or about the 6th day of March, 1896. Defendant denies each and every other allegation in the said amended petition contained and set forth not herein above specifically admitted;” denies all charges of negligence; denies that the plaintiff was without fault: avers that the plaintiff’s injuries were the result of his own fault and negligence; and avers also that when the plaintiff entered upon this employment, he did so with full knowledge of the construction and manner of operating the elevator and' premises, and that.he assumed the risks if any attaching to the use of the elevator in the premises.

At the close of the introduction of testimony on behalf of the plaintiff, on motion of the defendant, the case was arrested from the jury, and the jury was directed to return a verdict in favor of the defendant company, which it did. On account of this action,-plaintiff in error complains.

Aside from the question of contributory negligence upon the part of the plaintiff involved, the record, which is somewhat large, shows that proof was made of the facts substantially as alleged in the petition. The contract of employment of, the plaintiff was reduced to writing. It is very brief, and I will read it:

“Toledo, O., Sept. 3d, 1895.
“The Lozier Manufacturing Co.,
“Toledo, Ohio.
“Gentlemen:—
“For and in consideration of the sum of eighty-three & 33-100 dollars paid to me monthly, I hereby agree to take charge of your retail department in the city of Toledo, and to conduct the same for your sole interest and profit, using therefor my best judgment and ability, and under your instructions.
“My services proving, satisfactory,! further agree that same shall continue until September 1st, 1896, and at the above mentioned rate, unless otherwise mutually agreed.
“Yours truly,
Accepted. “A. S. Miller.”
“W. H. Raynor, Ass’t Manager.”

But the plaintiff contended, and introduced evidence tending to show, that there was a limitation fixed by the conversation of the parties about the time this contract was entered into, upon his authority with respect to making changes or repairs in and about the building where he was employed; and he contends from that, that no duty devolved upon him with respect tó keeping this elevator in repair. Testifying upon that subject at page 3, he says in answer to this question: “Q. When Mr. Raynor was there at that time, what, if anything, was said about the use of the elevator in that building? A. Well, he said the elevator was used to go back and forth to the riding academy, and that we should use the elevator. He went into the elevator and went up to the riding academy with me at that same time, and he said that we would not need an elevator boy; that it worked automatically, and all we had to do was to start it, and when we got to the riding academy it would stop; and when w« wanted to come down it would stop below. He said that regarding the furniture or fixtures or anything in regard to the elevator, why, “Don’t make any changes whatever without first notifying me. Any thing in the way of furniture, fixtures, or repairs, notify us —we will attend to that.” And he said.“If you have passengers to come up, it will not be necessary to send anybody up with them; if you start the elevator it will stop of itself— it will save you the expense of an elevator boy”

Now he says that that and other statements of the same sort placed a limitation upon his authority with respect to the elevator, and contained a direction with respect to the method of using the elevator, which he had a right to rely upon thereafter in his-use of it. It appears that the elevator was so constructed that by some sort of a safety appliance, which the makers testified was for safety only and not for general or ordinary use, but to prevent accidents, the elevator ordinarily would stop upon ascending at the third floor, and upon descending at the first floor. It also appears that the elevator had an a’ppliance, a oable, passing through it, by the use of which, pulling upon it in some way, the elevator could be made to start or stop at these floors or, any place between the floors. It appears from the testimony of the plaintiff that he was aware of that fact. He testifies on page 19—

You knew, didn’t you, that that rope or cable was the means by whioh the movements of the elevator were controlled? A. Yes, sir.

Now, with that knowledge that the elevator might be controlled by the use of this cable, and with the further knowledge stated in his petition and in his testimony, that the elevator was out of repair so that the automatic stop did not work successfully or properly, he, on the occasion that he was injured, used the elevator and allowed it to be run without making use of the cable or rope. His testimony as to the condition of the elevator, which is in accordance, as I have stated, with the allegations of his petition, runs this way:

“The elevator, at times, would stop perfectly level with the floor; at others, it would stop six or seven inches above, or as much as a foot — sometimes that much — below. Sometimes it would run three or four feet and stop altogether, and then it would start up again and go all right for awhile, and do the same thing again. And then, other times, it would go right straight through without any trouble.”

He testifies to a number of occasions when the elevator stopped in.this way, and resulted in the frightening of passengers. There is no evidence in the record except that on behalf of the plaintiff. It appears from that, that on one or two occasions or more the elevator stopped between floors, so that passengers had to be taken out with ladders, and pulled out or got out the best way they could. That he was aware of this. And it also appears that through the elevator being out of repair as it was, he was apprehensive that an accident might occur which, might result in the injury or the loss of life of some person using the elevator; that he complained either t * the manager or to the assistant manager about the condition of the elevator, and desired to have it fixed, and said something to the effect that he did not desire to take the risk of an accident which might result in an injury or in somebody being killed. It is averred in the petition that he had requested the manager and also the assistant manager to have the elevator repaired; but he testifies that up to the time he received this injury the elevator had not been repaired, to his knowledge — that is. he had no knowledge of its having been repaired. His own testimony, as well as that of other witnesses, indicates that the elevator was gradually and steadily growing worse in its operation, up to that time. On the occasion when he was injured, sometime after business hours, he attempted to ascend to the third floor with a bicycle for the purpose of trying in, which appears to have been a legitimate and proper thing for him to do in the course of his employment, and he was at the same time accompanied by Mr. Snyder, who wa> also an employe of the Lozier Co., and a fellow servant of the plaintiff. Snyder, who testifies, discloses that he also was advised fully as to the manner in which this elevator had been working. And it is to' be presumed that he was aware of the dangers of using the elevator as it was. And he was also advised of the fact that the elevator could be operated without relying upon the so-called automatic stops, by the use of the rope or cable passing through it. On this occasion Miller took his position in the elevator with his back towards the door of the cage and toward the cable. Snyder undertook to operate the elevator. He pulled the cable, and started the elevator moving upward. It appears then that he paid no further attention to it until after the elevator had passed the third floor and he heard' some ncise that indicated that some accident was likely to occur, when he jumped from the elevator to the third floor. Whether he escaped injury does not appear, but the elevator went on up, as stated in the petition, until it came to'the top. There it broke loose from the cable and fell to the bottom, resulting in injury to the plaintiS. Upon the elevator passing by the third floor, Snyder, according to his own statement, made an effort then to get hold of the cable, with the purpose in view of stopping the elevator, but he did not succeed, and then thinking it was too late to avert the catastrophe then imminent, he gave that up, and jumped from the elevator.

In view of this evidence, we are of the opinion that it appeared clearly from the evidence adduced on behalf of the plaintiff that he was guilty of negligence in makng use of the elevator after he had learned of its bad condition, and especially in making use of it in a reckless manner, by relying on the automatic stop, which he knew was out of order, and had been out of order for many months, instead of relying on the rope cable which, so far as it appears from the testimony, had never failed to work successfully.

It is urged on behalf of the plaintiff in error that he continued in the employment in consequence of these promises to repair. We do not think that the circumstances of the case would justify him in continuing in the employment and using the elevator'as he did usé it, even though the promises to repair had been made. But it may be remarked that the evidence shows that in the prosecution of the business there it was not absolutely necessary to use this elevator; that he might have ascended and descended by a stairway; and that ou occasions when passengers'became frightened and alarmed on account of the eccentric movements of this elevator, they did so ascend and descend.

As I have stated, it appears that this fellow servant, Snyder, was equally .negligent, and whether under all circumstances the negligence of Snyder would be-imputable to the plaintiff might be á question; but under the eiroumstances of this case we think it was clear. He permitted Snyder to operate the elevator. He turned his back upon an appliance which might have been used with safety to stop the elevator at the third floor, and saw fit to recklessly omit to use it.

Whatever doubt there might tu.ve been under the original hiring and the conversation occurring about that time as to Miller’s duty to see that the elevator was repaired and kept in repair, we think it is clear from what subsequently occurred between the parties that this duty devolved upon him; and for that reason, as well as for the reason already stated, the plaintiff is not. in a situation to recover. At pages 105 and 106 of the record. Miller, on recall, testifies as follows:

“Well, I telephoned. I remember one time I spoke to Mr. Raynor about the elevator, and he said “perhaps you had better call up the elevator company.” That is the way I got information that it was the Haughton elevator. He said “call up the Haughton Manufacturing Company, it is their elevator, and have them come up and look over it and have it fixed.”

Q. After that tlak with Mr. Raynor, wfiat, if anything, did you do about calling them up? A. When I came down io the store I told Mr. Tracy or Mr. Sanbaugh — I think Mir. Tracy— that he bad better call up the Haughton Elevator Company and have them come and fix the elevator, and 1 think Mr. Tracy went to the phone right away and did that.”

In other words, he was directed to have the elevator fixed. He says that in the conversation about the time of his employment, the parties came to an understanding that he was not to have any repairs done without first consulting the company or the managers of the company, and receiving authority from them to have changes or repairs made or expense incurred in that way; but that the duty devolved upon him of having repairs made after receiving such express authority', cannot be questioned. And on the occasion with respect to which he has here testified, he did receive such express authority and direction to have the elevator fixed. He testifies here, as I have said, that he was not aware that anything was done subsequently about fixing the elevator, but he appears to have delegated this duty to Mr. Tracy, an employe. From the testimony of Mr. Tracy and Mr. Haughton we gather that Tra.ey made application to the Haughton Company to come and fix the elevator. Mr. Haughton testifies that he came and examined the elevator, and found it in very bad and dangerous condition, and that he informed Mr. Tracy of its condition. With the knowledge thus obtained by Mr. Tracy, acting under the direction of Mr. Miller, unquestionably Mr. Miller was chargeable. Mr. Haughton was asked about the condition in which he found the elevator. He answered:

“I found that the bearing which supported the automatic stop at the top and bottom landings had broken loose where it was bolted to the ceiling. The boards had broken out and come down and it had no end support.”
‘Q. Then what did you do? A. I reported it to the store of the Lozier people.”
“£). To whom did you report it? A. I think to Mr. Tracy.” *‘Q. To Mr. Doria Tracy? A. I think it was — I won’t swear to that.”

But it elsewhere appears in the record that his conversations on the subject were with Tracy.

The plaintiff in error cannot hold the company responsible for the result of his own omissions to have the elevator repaired. He says be didn’t know whether it was repaired or not. He was bound to know, but he continued to use it at bis own risk and peril. He cannot tell precisely when this conversation occurred with Mr. Raynor, in which he was directed to have the elevator fixed, but it appears that it must have been as late as early in February, not more than one month before he was injured. It is not apparent that he was subsequently relieved of this duty and responsibility. If the elevato was subsequently used by him or by anybody else without being repaired, it was his fault. If another had been injured — a customer or an employe under Miller, unquestionably the company could have been held liable, on account of this knowledge of Miller and the fault of Miller in not having the machine repaired.

We think the evidence of the negligence of Miller from, the undisputed facts is so clear that no other rational inference •can be drawn from such facts, and different minds could not •arrive fairly at different conclusions upon them. For the rea•sons stated the judgment of the court of common pleas will be affirmed.

Touvelle, Masters & Adams, for Plaintiff in Error.

Brown & Geddes, for Defendant in Error.  