Archer v. Eldredge

Braley, J. While the plaintiff was on top of the car of an hydraulic passenger elevator repairing a part of the operating machinery the car which had been stopped at the fourth floor automatically started upward, and its progress being unchecked he was caught and jammed between the car and a beam at the top of the well. At the close of the evidence a verdict was ordered for the defendants, and the case is here on report. The plaintiff, who operated the elevator, knew that it had been closed for repairs, and the attendant circumstances are so fully described in the former opinion when the case first came before this court that there is no occasion for their repetition. Archer v. Eldredge, 204 Mass. 323, 324, 325. It was then determined, even if the declaration contained counts under R. L. c. 106, § 71, alleging negligence of a superintendent or of some person entrusted with superintendence, that one Wright, whose orders the defendants directed the plaintiff to obey, was not acting within the meaning of the statute, and that upon the remaining counts charging them with negligence under the statute as well as at common law in failing to provide a suitable elevator, the evidence did not show any violation of this duty, and the defendant’s exceptions accordingly were sustained. The evidence, however, at the second as well as at the first trial, shows that the engineer’s duty required him to keep the elevator in running order, and at his request the plaintiff voluntarily assisted in repairing the upper dog on the shipping rope, which had become defective. If the dog did not work properly [403] the stopping of the elevator could not be effectively regulated, and when the elevator began to ascend it would continue on its way to the top of the well. The defect having been obvious the case of Moylon v. D. S. McDonald Co. 188 Mass. 499, where the plaintiff was ignorant of the manner in which the machinery controlled the car, is inapplicable, and the defendants were under no obligation to inform the plaintiff in the present case that the elevator had become unsafe, or to direct his attention to the specific defect which the engineer and himself were attempting to remedy. Regan v. Lombard, 192 Mass. 319, 323, 324. Archer v. Eldredge, 204 Mass. 323, 326. The plaintiff apparently does not seriously contend to the contrary, but urgently presses the argument, that “if while repairs had been in progress upon the elevator, it had started by means of some part of the mechanism quite disconnected with that undergoing repair, ” he should have been permitted to go to the jury. Archer v. Eldredge, 204 Mass. 323, 325. To bring himself within this exception he introduced competent evidence from which the jury could have found, that the sudden starting of the car arose from the failure of the shipper rope properly to open and close at the terminal floors the valve with which it was connected. But even if the car while stationary might not have automatically started if the valve had not leaked, the undisputed fact remains, that the valve, shipping rope and upper dog were interdependent in the operation of the elevator, and if the dog which he was repairing had been in working order the car would have stopped and not ascended, and the accident would have been prevented. We are unable to discover any substantial distinction in the essential questions presented by the record from those which were passed upon in the former opinion, and the plaintiff having assumed the risk of whatever happened, judgment for the defendants is to be entered upon the verdict. Malden & Melrose Gas Light Co. v. Chandler, 211 Mass. 226, 227. So ordered.