Avilla v. Nash

Wells, J. It is not clear from the report, nor from the declaration, upon what precise ground of liability the plaintiff sought to maintain his action. Assuming it to have been what is indicated by the instructions excepted to, to wit, that the defendants neglected to take proper precautions, in relation to the elevator, to prev'ent persons in their employ from using it in a manner and for a purpose for which it was not intended, and contrary t.o the rules of their business, their liability on that ground would depend upon three questions of fact: First, Whether the condition of the elevator, its relation to the business of the defendants, or to the work in which the plaintiff was engaged, and all the circumstances of the case were such as to require of the defendants some precaution against such improper use. Second, Whether they were guilty of neglect, either in not taking precautions, or in respect to the sufficiency of the precautions taken by them. Third, Whether the plaintiff was injured by reason of the want oi insufficiency of such precaution. The instructions were, in substance, that directions by the superintendent to the foreman, under whom the plaintiff worked, to warn the workmen of the rulé against going upon the elevator, would be sufficient in law to exonerate the defendants. The case of Durgin v. Munson, 9 Allen, 396, chiefly relied on to support this ruling, decided merely that such directions were admissible in evidence upon the question whether the defendant had used [321] due precautions or was guilty of negligence in respect to the cause of the injury. We are of opinion that the question in this case should have been submitted to the jury as one of fact. Exceptions sustained.