Sikora v. Fellowcraft Club , 195 Mich. 49 ( 1917 )

Kuhn, J.

By the decision of this court in the case of Sikora v. Fellowcraft Club, 189 Mich. 235 (155 N. W. 495), a judgment obtained on the trial of that case was reversed, and a new trial ordered. A detailed statement of the facts of the case is there found. The new trial also resulted in a verdict and judgment for the plaintiff, and the case is again brought here by-writ of error.

It is conceded by the appellant that all the assignments of error be treated under the one head of whether or not the plaintiff has produced any competent evidence which would warrant the submission by the court to the jury of the question of the negligence of the defendant by its servant, the elevator operator. On the former trial judgment was had against both the defendant and the executors, of the estate of Thomas W. Palmer, deceased, owner of the building, but by the opinion of this court the liability of the owner of the building was disposed of, leaving for consideration on the new trial only the question of the negligence of the defendant. It is now urged that the elevator operator was authorized and justified in relying upon the signal or direction of Kottelfski, who was the superior of the plaintiff’s decedent, and who, together with him, was at the time of the accident delivering beer to the quarters of the defendant, who occupied the fourth, fifth, and sixth floors of the Palmer Building, in the city of Detroit, and that therefore a verdict should have been directed in favor of the defendant.

We are of the opinion upon this record that the question of the negligence of the defendant and the contributory negligence of the plaintiff’s decedent were questions of fact for the jury. Upon the new trial the evidence as to what was said by Kottelfski to the elevator conductor, which had been rejected upon the first trial, was admitted.

In our opinion, it does not follow that because the elevator operator received instructions to go ahead from Kottelfski, who was a passenger, and who had nothing to do with the operation of the elevator, that he was relieved of the duty of exercising care in starting the elevator. Whether this duty of attention to the plaintiff’s decedent was excused by the talk between Kottelfski and the conductor of the car presented, at most, a question for thé jury. See Roulo v. Minot, 132 Mich. 317 (93 N. W. 870).

We have carefully examined the charge of the court, and find that the questions of defendant’s negligence and the plaintiff’s decedent’s contributory negligence were submitted to the jury with proper instructions. We discover no reason why the judgment complained of should be disturbed, and it is therefore hereby affirmed.

Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.