Mouso v. A. N. Kellogg Newspaper Co.

Gilfillan, C. J. Action for an injury sustained in falling down an elevator shaft. The defendant occupied, as tenant, the sixth story [408] of a ten or twelve story building. For the use of tenants, and those having business with them, there was a freight elevator extending up through the several stories. Its shaft was inclosed, but had, on defendant’s story, a door fastened on the inside, or elevator side, which the man in charge of the elevator opened when it stopped at that story, and closed and fastened when it left that story, going up or down. The elevator and the door were in the control of the owner of the building, the defendant having no more control of them than any one else. Any one desiring the elevator to come to or stop at that floor gave a signal by touching a bell. Plaintiff was in the employment of an express company which did the carrying for defendant, and he received and receipted for its packages at its room, and took them down by means of the elevator. As soon as he receipted for them, they were entirely in his control, and the defendant and its servants exercised no control over them, and had no part in getting them to, and down on, the elevator. On the occasion when injured, he had gone up the elevator, received and receipted for the packages, and was waiting for the elevator to come to that story. . An employé of defendant, though it was outside of his duty, and was unconnected with any business of his master, reached through a broken window in the door in the elevator shaft, and opened it. After a little, defendant’s shipping clerk, knowing plaintiff was waiting for the elevator, called out to him, “All right, Charlie,” and he, supposing that meant the elevator was up, picked up a package, walked through the door, and, the elevator not being there, fell down the shaft. It is claimed that defendant was chargeable with negligence because of its shipping clerk indicating that the elevator was all right. But, in the first place, there is no evidence that the shipping clerk knew the door was open without the elevator being there, and, secondly, his act of advising plaintiff the elevator-was right was not the act of his master, nor was it done in performing any duty to his master. It was no part of his duty to assist plaintiff, in any way, in handling or getting the packages on the elevator. On the evidence, defendant could not be held on- the ground that the open door made its premises unsafe. It was not responsible for the act of the’man who opened it, for in doing so he was not about his master’s business, and it was not' shown that any of its servants, [409] whose duty it might be to shut it, knew it was open. The manager was not there. The evidence was stronger to show plaintiff knew it was open, without the elevator being up, than it was to show any one else, but the man who opened it, knew of it. Order affirmed. Buck, J., absent, sick, took no part.