Samuel Cupples Woodenware Co. v. Walins , 140 Ill. App. 624 ( 1908 )

Mr. Justice Adams

delivered the opinion of the court.

It is not conceded by plaintiff’s counsel that the mere happening of the accident is prima facie evidence of negligence on the part of the defendant, and this cannot be successfully contended in the present case. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338; Omaha Packing Co. v. Murray, 112 Ill. App. 233.

Plaintiff’s counsel urge, as ground of recovery, that the defendant failed to comply with the requirements of sections 670, 671 and 672 of the Revised Municipal Code of the city of Chicago of 1905. Section 670 provides:

“It shall be lawful for elevators used exclusively as freight elevators to be without inclosing walls, but in all such cases there shall be at every floor through which such freight elevators pass, automatic hatch closers, or automatic doors, made in such manner that they will fully close each well hole when the temperature in such well hole exceeds one hundred and forty degrees Fahrenheit,” etc.

Section 671 provides:

“In all non-fire proof buildings all passenger elevators and all freight elevators, except such as are expressly excepted by this chapter, shall be inclosed in a wall of brick, tile, or such other incombustible material as may, from time to time, be approved by the Commissioner of Buildings as proper and suitable for the purpose,” etc.

Section 672 applies only to elevator shafts “required herein to be enclosed with fire proof walls,” or, other words, to non-fire proof buildings. The intention and object of the sections is clearly, as we think, protection against fire. The shaft of the elevator in question had, at the time of the accident, walls on two sides, an iron grating at the rear and an iron door in front, reaching from the floor to the top of the opening, which door, when shut, closed the entire opening. The door was not automatic. There were two sets of wooden stairways on each floor.

Edward S. License, the defendant’s superintendent, testified that “The building is made of entirely fireproof construction.” This is uncontradicted. The want of an automatic door was not the proximate cause of the accident, nor did it contribute thereto in the least.

Section 670 provides for “automatic hatch closers, or automatic doors, made in such manner that they will fully close each' well hole, when the temperature in such well hole exceeds one hundred and forty degrees Fahrenheit,” which could only be during a fire, and there is no evidence of a fire. It is manifest that if there had been an automatic door at the opening, and if it had closed at the time of the accident, the plaintiff could not have done his work, which was the moving of a loaded truck from the floor of the room through the opening and onto the elevator floor.

Plaintiff testifies that, October 13, 1906, about 3:15 o’clock in the afternoon, he was pulling a loaded truck onto the elevator, with his back to the elevator, and that when the truck was about half onto the elevator floor, some one, he does not know who, caught hold of the elevator rope and the elevator dropped three or four feet, and boxes on the truck were thereby thrown forward and bumped Ms left hand against the wire screening at the rear of the elevator, and injured him. It is urged by plaintiff’s counsel that the defendant was negligent in not preventing persons from touching the rope. Plaintiff further testified that wMle Mr. Bice was superintendent, for four years, during which lie, plaintiff, was in defendant’s employ, he, plaintiff, had sole charge of the elevator, and no one used it but himself, except sometimes, when he would lay off; but after Mr. License became superintendent, everyone in the building used it, and that, about three weeks before the accident, he said to Mr. License that everybody was around the elevator, and that he had better quit the job, and Mr. License said, “Never mind; nobody is going to touch it; do not know anytMng about it.” The evidence is, without contradiction, that the plaintiff had the sole charge of the elevator, and was the only person whose duty it was to use it, and wMle the plaintiff testified that everybody used it, he does not testify to the name of a single person who used it, or, if anyone used it except himself, for what purpose it was used.

Mr. License testified that the plaintiff’s duties were to run the loaded trucks onto the elevator and take them to the floors where they belonged; that he was the only one who did that work, and that, to witness’ knowledge, the plaintiff was the only person in defendant’s employ who used the elevator; also that he, witness, had instructed every one of defendant’s employes not to use the elevator, Mr. License also testitied that the plaintiff never complained to him of others using the elevator, and that he had not the conversation with the plaintiff testified to by the plaintiff to have occurred before the accident.

In order to hold the defendant responsible for any one taking hold of the elevator rope and moving the elevator, while plaintiff was using it, it is essential to prove that this was done by some one for whose conduct the defendant was responsible. Defendant would not be liable for the act of a stranger, over whom it had no control. C. & N. W. Ry. Co. v. Scates, 90 Ill. 586, 594. It certainly cannot be inferred from the fact, if a fact, that some one pulled the elevator rope, that that some one was in defendant’s employ or subject to its control. Plaintiff did not testify that he saw any one pull the rope, and his position was such—backing into the elevator and pulling the truck after him—that it was hardly possible for him to see any one pull it. He certainly could not see down the shaft below the elevator floor.

Assuming that plaintiff’s testimony, which is contradicted by Mr. License is true, that, about three weeks before the accident, he told Mr. License that others were using the elevator, and Mr. License said, “Never mind; nobody is going to touch it,” can this avail the plaintiff? Plaintiff testified: “As soon as Mr. License started to superintend, other men started to use the elevator, and they kept on using it right along until the time when I was injured.” Here plaintiff tells us, in effect, that he knew every day, for about three weeks from the time of his alleged conversation with Mr. License, that the elevator was being used by others; yet he kept on with his work, requiring the use by him of the elevator for three whole weeks, without complaint or remonstrance. If Mr. License’s alleged remark to plaintiff is to be construed as a promise to prevent the use of the elevator by others than the plaintiff, it is a promise which might have been fulfilled in a day, as to those over whom he had control. Plaintiff, by continuing to use the elevator three weeks, with full knowledge, as he says, that during all that time it was also being used by others, cannot avail of the alleged conversation with Mr. License. Gunning System v. LaPointe, 212 Ill. 274. By continuing so long in the use of the elevator, without any change as to its use by others, he assumed the risk of using it. lb. 280.

We are of opinion that the finding of the trial court is manifestly against the greater weight of the evidence, and the judgment will be reversed.

Reversed.