DocketNumber: S.F. No. 6162.
Judges: Angellotti
Filed Date: 2/8/1915
Status: Precedential
Modified Date: 10/19/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 219 Hearing granted in this court after decision by the district court of appeal for the first district.
This is an action brought to recover damages for personal injuries sustained by the plaintiff from the fall of an elevator which occurred during the making of certain repairs upon the City of Paris building in San Francisco.
The defendant was a contractor engaged in doing certain cement and plaster work in the course of said repairs, and while doing such work was using and operating an elevator which had been temporarily placed in said building by the Clinton Fireproofing Company in order to facilitate the work of making the repairs. Defendant was using this elevator in his own work under an arrangement with the fireproofing company, paying such company a stipulated sum per day for the use of the car and the engineer's time. This elevator was operated by means of a donkey engine in the basement, the engineer of which engine was directed by the defendant while he and his employees were making use of the elevator. The plaintiff was a hod carrier who had been in the employ of the defendant for a day or two before the accident occurred. On the day of the accident one Richard Downing was acting as foreman for the defendant and was directing the services of his employees in the prosecution of said work. A short while before the accident Downing directed the plaintiff to go with him upon said elevator to the upper floor of the building, there to procure some barrels of cement which were to be placed upon the elevator and transported to a lower floor. The cement was placed upon the elevator; the plaintiff also got upon it with Downing and by his direction, and the latter gave the engineer the signal to descend. While so descending Downing signaled the engineer to stop at the required floor. In descending, whether without stopping or just upon stopping at the second floor, the evidence being in conflict on this point, the elevator fell to the basement. The plaintiff received the injuries complained of, was carried unconscious from the building, and was for several months confined in a hospital or at his home, and was thereby precluded from conducting any personal investigation as to the cause of the accident. When he so far recovered as to be able to make such investigation both the elevator and all external evidences of the way the accident had occurred had disappeared. *Page 221
Upon the trial plaintiff introduced evidence showing the facts hereinbefore stated. There was also evidence tending to show as follows: The elevator was an ordinary hoisting elevator for use in building purposes, placed temporarily in any building where its use was deemed expedient by its owners, the Clinton Fireproofing Company. The top of this appliance was a head-piece or cat-head, consisting of "a timber carrying two sheaves," over which the cable attached to the car ran. Apparently, the appliance was put in place in a building by attaching this head-piece in some way to the building itself. A very short time before the accident the engineer of the Fireproofing Company, who was still in their employ at the time of the trial, testified that "it may have been one day, or it may have been three or four — a very short time before," this head-piece had been lowered from a former position to the place where it was at the time the elevator fell. Almost immediately after the accident and before anything had been done to change the conditions, both the engineer and one Nelson made an examination as to the situation. The engineer testified that he found that "the head-piece was scattered pretty much all over the building," and again: "That was scattered all over the building, that part of it." Asked as to whether he found any portion of the head-piece broken, he said that he "found it all broken apart, it was all separated, and there was a cap of one of the boxes broken." He said that he could not say that he found any of the pieces of wood that composed the head-piece broken in two or cracked, but that there were timbers broken that were used in holding the head-piece in place. He found "a bunch of broken timbers." Again he testified that at the top he found "some timbers there that were broken in two, or cut in two by the line." Nelson testified: "I found the pieces that carried the two wheels or pulleys that the cable ran over were broken; there were some of them broken and some of the boxes where the ex goes in were pulled out of the sockets, and, . . . two of the iron boxes came down into the basement. The whole business was pulled apart and broken, some of it loose." There was also evidence to the effect that once or twice previously the same load had been carried on the elevator, but it does not affirmatively appear that this was prior to the lowering of the head-piece. *Page 222
In his complaint herein plaintiff averred that "the breaking and falling of said elevator was due to the improper and negligent construction thereof, and that said defendant had knowledge of said negligent and improper construction and that the plaintiff had no knowledge thereof."
There was no other proof than that above stated as to the cause of the falling of the elevator, or in support of the averment that the breaking and falling of the elevator was due to the improper and negligent construction thereof, or that defendant had knowledge of said negligent and improper construction, or should have had such knowledge. Upon the grounds, among others, that there was not sufficient evidence to make a prima facie case in these regards, defendant moved for a nonsuit, and the lower court granted such motion. Judgment was thereupon given that plaintiff take nothing, and we have here an appeal by plaintiff from such judgment.
It is to be borne in mind that the cause of action stated in the complaint is based solely on the alleged "improper and negligent construction" of the elevator, and that no other negligence on the part of defendant, if any, such for instance as negligence in the operation of the elevator, is available to plaintiff in this action, as the pleadings now are. We have no doubt, however, but that the specification of improper and negligent construction must be construed as meaning an improper and negligent condition of the elevator as it was at the time of the accident — its unfitness at that time for the purposes for which it was intended and was being used. It was incumbent on plaintiff to make a prima facie case of negligence in the respect averred, and if he did not present evidence from which the jury could legitimately infer negligence on defendant's part in this respect, the motion for a nonsuit was properly granted. Of course, as was said in Hoff v. Los Angeles etc. Co.,
In the absence of further affirmative proof as to the cause of the accident and the negligence of the defendant, plaintiff relies upon the application to his case of the doctrine of resipsa loquitur, claiming that applying this doctrine the evidence was sufficient to create a presumption of defendant's negligence in the respect averred — to make a prima facie case in such respect, and thus to put defendant to his proof.
As was said by the district court of appeal, the maxim res ipsaloquitur translated means simply "the thing, or affair, speaks for itself," and, so speaking, authorizes the inference of negligence in the absence of a showing to the contrary. As applied to cases of alleged negligence, the rule, as stated inJudson v. Giant Powder Co.,
It seems to us very clear that this was the condition of the evidence when plaintiff rested his case. The evidence as to the condition of things at the top of the shaft and of the headpiece immediately after the accident, in connection with the evidence as to the lowering of the head-piece only a day or so before, renders it an entirely reasonable inference that the sudden fall of the elevator was due to the giving way, under the strain of the load, of the supports of the head-piece. The *Page 225 evidence of the engineer, whose interest, if any, would naturally be with the defendant, tended to show that, while attachments of the head-piece had given way in the accident and that the thing was "all broken apart," "separated," none of the pieces of wood that composed the head-piece had been broken in two or cracked, but that timbers holding the head-piece in place were broken in two. The head-piece itself had apparently been wrenched away from its supports, and had fallen to the floor. At least, the evidence was such as to make this a reasonable conclusion. It would be entirely reasonable to conclude, upon this evidence, in view of the established fact that the appliance had always previously proved sufficient for the purposes for which it was used, that the defect was in the supports at the place to which it had been recently lowered, or the manner of its attachment to those supports. The conditions were not such, in our judgment, as to indicate that the falling of the elevator was due to any negligence on the part of the engineer. We do not well see how the falling of the elevator could have produced the conditions existing at the top of the shaft immediately after the accident. In view of the use that had previously been made of the elevator, it is not fair to assume that there was any negligence in placing on it as large a load as that with which it started from the fourth floor. Really, in view of the circumstances shown, no adequate cause for the accident appeared other than the giving or yielding of the supports of the head-piece. Such a thing does not happen in the ordinary course of things if those who have the management use proper care.
We are of the opinion that, in order to make a sufficient case for the jury, it was not incumbent on plaintiff, under the circumstances appearing, to do anything further in the way of showing that the defect in the appliance was actually known to the defendant, or would have been discovered upon the exercise of reasonable care to ascertain as to its condition. There was nothing in the evidence showing that the defect was such that it would not have been discovered, had such an examination of the structure been made by defendant as reasonable care for the safety of his employees demanded. The evidence indicates that the plaintiff could have known nothing before the accident about the condition of the elevator in so far as its safety was concerned, and shows that by reason of his injuries he was unable to make any investigation as to *Page 226
the cause of the accident until the elevator and all external evidence of the way the accident had occurred had disappeared. It is reasonable to assume that the defendant could have ascertained and probably did ascertain the cause of the accident, and certainly it was within his knowledge whether or not he had used due care for the observance of defects in the appliance furnished for the use of his employees. There are numerous authorities to the effect that under such circumstances it is enough for the employee to show that the accident was due to a defect in the appliance furnished the employee, without showing the precise nature of the defect, in this respect, and that such a showing warrants the inference that, if the defendant does not choose to give an explanation, the real cause was negligence on his part. This conclusion does not violate the well-settled rule that the party who alleged negligence must prove it, but simply means that such proof, under the circumstances stated, fairly warrants an inference of negligence, in the absence of explanation or evidence of reasonable care on the part of a defendant having superior knowledge as to the facts. In the case of Penson v.Island Empire etc. Co.,
We have no doubt that it is entirely immaterial that defendant did not "construct" the elevator, or put the headpiece in the place where it was at the time of the accident. We have already referred to the matter of the proper construction to be given to the allegation of the complaint as to the cause of the accident, viz., "the negligent and improper construction" of the elevator. Defendant had procured from the owner the use of the elevator for the purposes of his own work, and furnished it to his employees for their use in such work. He was in the management and control of the same while it was being so used. It was incumbent on him, so far as his employees were concerned, to use reasonable care to see that it was not a defective and dangerous appliance for them to use in his work. It is entirely sufficient, in so far as plaintiff's case is concerned, that defendant was using this appliance as he did. (See Higgins v. Williams,
We see no other matter in the briefs that requires notice. We are of the opinion that the lower court erred in granting the motion for a nonsuit.
The judgment is reversed.
Shaw, J., Sloss, J., Melvin, J., and Lorigan, J., concurred. *Page 229
Hackley v. Southern Pacific Co. ( 1935 )
Queirolo v. Pacific Gas & Electric Co. ( 1931 )
Talbert v. Ostergaard ( 1954 )
Hubbert v. Aztec Brewing Co. ( 1938 )
Williamson v. Pacific Greyhound Lines ( 1947 )
Zentz v. Coca Cola Bottling Co. ( 1952 )
Mudrick v. Market Street Railway Co. ( 1938 )
Lupton v. Domestic Utilities Mfg. Co. ( 1916 )
Ronconi v. Northwestern Pacific Railroad ( 1917 )