McCarthy v. Foster , 156 Mass. 511 ( 1892 )

Barker, J.

It is unnecessary to consider whether there was evidence upon which the jury could find obligation and negligence on the part of the defendant, since we are of the opinion that upon the evidence the plaintiff cannot recover, because, as against the defendant, he had no right to use the elevator as he was using it at the time of the accident.

The elevator with which he fell was for merchandise only. He had operated it for years, and was perfectly familiar with its construction and its use. He knew that all persons were forbidden to pass up or down upon it, by notices plainly posted, and with which he was familiar. That he and others habitually disregarded them, and rode up and down in violation of them, cannot favorably affect his case against the defendant, as the latter was not in possession of the store, and had no notice that the elevator was used except for merchandise. The notices fairly construed forbade being upon the elevator while it was in motion; for one must be passing either up or down upon it, if upon it while it was in motion. When it was stationary, and at the level of the floor, the plaintiff had the right to go and to be upon it to load or to unload merchandise; but, under the terms of the notice, he had no right to be upon it for any purpose when it was passing up or down. As the mode of putting it in motion by pulling the shipper ropes when standing on the elevator involved his being upon it while it was in motion, that mode of starting it was forbidden, and it was improper for him to use it. He used it at his own risk, and for an injury resulting in the act of so using it the defendant is not responsible to him.

It makes no difference that, owing to the piling of merchandise against the slats enclosing the elevator well, the elevator could not be started from that floor of the store except by standing upon the elevator platform, or that there was some danger in starting it by handling the shipper ropes with the arm between the slats. The defendant was not in possession of the store, and was under no obligation to the plaintiff for faults in the plan or construction of the elevator; and 'so far as the defendant was concerned, the plaintiff had accepted the risks resulting from such faults, which, if they existed, were obvious.

The piling of the merchandise against the slats was the act of the plaintiff’s own employer and of his servants, including the plaintiff himself, who seems to have been chiefly responsible for it, he having charge of the placing of the merchandise. The defendant was in no way responsible for it, and had no control over it; and, as against him, it forms no element of liability.

As against the defendant, the plaintiff had no right to be in the elevator for the purpose, for which he was there when it fell, and he had fair notice and warning not to be there, and the defendant is not bound to compensate him for injuries sustained by reason of his presence in the elevator for a purpose necessarily involving passing up or down upon it, which was forbidden. He had no right to be upon the elevator when it was in motion at all.

Judgment on the verdict.