Timlan v. Dillworth

The opinion of the court was delivered by Hendkickson, J. This writ brings up for review a judgment of the Hudson County Circuit Court entered upon the verdict of a jury. The plaintiffs, who are husband and wife, recovered a verdict in favor of Mrs. Timlan for $2,000 and of Mr. Timlan for $500 damages, and the plaintiffs having elected to remit — 102 — excessive damages pursuant to the opinion, of the trial court upon a motion for a new trial, judgment was entered in favor of Mrs. Timlan for $1,400 and in favor of Mr. Timlan for $300 damages. The errors assigned grow out of the refusal of the trial judge to grant a nonsuit and to direct a verdict for the defendant upon which exceptions were allowed and sealed and also upon exceptions to the charge. The action arose out of injuries sustained by Mrs. Timlan through the falling of a dumb-waiter elevator in premises owned by the defendant situate in Jersey City, and a part of which were occupied by the plaintiffs as tenants. There were eight tenants occupying different apartments. The dumb-waiter ran in a shaft between the apartments from the upper floor to the cellar, and was used by all the tenants for the purpose of carrying coal and wood from the cellar and lowering ashes to the cellar. Doors opened from the dumbwaiter shaft to the apartments. The dumb-waiter was twenty inches deep, twenty-four inches wide and three feet seven inches high, weighing from fifty to seventy-five pounds. It was operated by hand on a system known as the wheel and axle. At the top of the shaft was a platform upon which was a revolving shaft carrying a large pulley thirty inches in diameter and a small pulley ten inches in diameter, the smaller pulley being known as the axis or axle and the larger wheel as the wheel. Around the wheel ran an endless rope which was pulled by the tenant in raising or lowering the elevator. The down-haul rope was at the right of the entrance to the elevator shaft; the up-h^ul rope was on the left. The elevator was suspended to a rope that ran around the small wheel or axis, the weight of the elevator being balanced by a counterpoise. The elevator was attached to the rope by a hook-bolt which ran through the head of the car and was fastened underneath by a nut or bur. Mrs. Timlan testified that on March 18th, 1906, she went to the elevator door and opened it for the purpose of using — 103 — the elevator; that from not seeing the rope that suspended the elevator she knew the elevator was at the top of the shaft; that she had a pail of ashes in her left hand, and put out her right hand to draw down the elevator, when it gave way and came down upon her head; that the force of the rope dragged her into the shaft; that the rope went from her and dragged her body in. It is argued that the nonsuit should have been granted because it is a physical impossibility that the accident happened in the manner described, and that she must have been guilty of contributory negligence in unnecessarily putting her head inside the elevator shaft. With this we are unable to agree. When, the nut or bur came off the bolt, allowing the ear to fall, the counterpoise weight was released and went down with a run; there was evidence to the effect that this would occasion friction of the rope on the small wheel, and the resulting rotation would lift up the rope of which Mrs. Timlan had hold. As the rope in its normal position was at least the thickness of the jamb (eight inches) away from her perpendicular, and as she had necessarily drawn the rope in towards her in the act of pulling down upon it, the sudden reverse motion would do (or might reasonably be found to have done) just what she said it did, namely, “The rope went from me and dragged my body right in.” It was further urged that the motions to nonsuit and direct a verdict should have been granted on the ground that the dumb-waiter was a part of the realty and there was no proof that defendant retained it in his possession or had control of it. We think it clear that the dumb-waiter was one of the common facilities retained by the landlord, who thereby was charged with the exercise of reasonable care concerning its condition, under the rule laid down by the Court of Errors and Appeals in Siggins v. McGill, 43 Vroom 263. We are unable to discover evidence (much less conclusive evidence) of Mrs. Timlan’s contributory negligence in the circumstances under which the accident occurred. Nor do we see any conclusive evidence that her husband — 104 — had. knowledge of any defective condition of the nut and bolt. Nor does it seem to us that if he had such knowledge it would be imputed to his wife under the decision in Goodenough, v. Pennsylvania Railroad Co., 26 Vroom 577. A question of more nicety is raised from the fact that the defendant had owned the premises only a short time. He took title on March 14th, and the accident happened on the 18th. It appears, however, that he_ commenced negotiations for its purchase early in February, and on the 8th of that month examined the premises in a general way, and a few days later examined them more particularly in company with a Mr. O’Connor, and found that the dumb-waiter worked perfectly. On March 12th he again examined the premises, including the dumb-waiter. It was reasonable, however, for the jury to infer that he took no more notice of the elevator than to ascertain whether it could be operated, complaint having been made that it worked stiffly, and that with respect to the safety of the elevator he relied altogether upon the mechanic who had the matter in charge. It appears that one Kellett had overhauled the dumb-waiters in April, 1905, about a year before the accident. He says that he screwed up the nut on this bolt and upset the holt — that is, battered the head of it so as to cover the bur — leaving the elevator in a safe condition. An inspection of the nut and bur shows clearly that this work of Kellett was done in a very careless manner. After the accident the nut was found in the bottom of the elevator, where it had fallen from the bolt; it was applied to the bolt and found to fit loosely with one bright' thread on both bolt and nut, and the other threads seemed rusty and as if out of use, and it was reasonable for the jury to infer that any careful inspection of the nut by the person charged with its inspection would have disclosed its unsafe condition. We think the jury could reasonably find that the proper care that the landlord should exercise when assuming control of a mechanism of this sort was not fulfilled without some more careful inspection than the defendant had exercised. If he had testified that he assumed that it was safe because he had had no — 105 — notice to tlie contrary a different question might have been presented. But he undertook to inspect, and the jury might fairly infer that he inspected so carelessly that he overlooked that which a reasonably careful inspection would have disclosed. It is further urged for reversal that the trial judge erred in charging the jury that they might allow Mr. Timlan compensation for his loss of the comfort and society and services which he was entitled to have rendered by his wife, as wives ordinarily render them to their husbands. It is not contended that there was any error of law in the proposition thus stated to the jur3, except for the fact, as alleged, that the declaration did not in terms cover this element of damage, the words of the declaration being in that respect that “he, the plaintiff, has lost the services of his said wife for a long period of time, &c., and will for a long time hereafter lose the same,” &c. As to whether the words of the declaration are in fact sufficient to sustain this part of the charge it is not necessary to determine, for the reason that we do not think this question is presented by the record. First, because the exception as taken is multifarious and therefore inefficient. It includes several distinct matters, without pointing out to the court the precise question intended to be complained of. Such an exception has been held nugatory by the Court of Errors and Appeals in Associates, &c., v. Davison, 5 Dutcher 415-417, and in subsequent cases. Secondly, because there is nothing-in the exception taken by the defendant to suggest as a ground of exception that the items of damage alluded to were not covered by the declaration, so we are entitled to take it from what the judge said, that this item of damage was a part of the claim of the plaintiff that was litigated at the trial and the declaration would he amendable, if necessary, for* the purpose of supporting the judgment. It is also probable that if the attention of the learned trial judge had been called to this ground of exception he would have either corrected his charge accordingly or allowed an amendment of the declaration in tire particular mentioned. It is too late now for the defend — 106 — ant to avail himself of the objection to the charge complained of. We have looked at the other assignments of error, but finding no substance in them the result is that the judgment below must be affirmed.