Zieman v. Kieckhefer Elevator Manufacturing Co.

Pinney, J. 1. By the contract between the elevator company and the Reliance Wire & Iron Works, the elevator was to be held and operated by the latter upon trial, and not to be accepted and paid for until in complete running order; [501] and defects appearing in work, material, or construction were to be made good and repaired by tbe elevator company. In tbe meantime, that is to say, while tbe elevator was on trial and until the elevator company performed its contract, tbe Reliance Wire & Iron Works was to bold and operate it for tbe purposes of its business, under tbe supervision and control of tbe elevator company. This supervision and control was for a limited purpose, extended only to such acts as would enable it to perform its part of tbe contract, and bad, we think, nothing to do with tbe business relations of tbe Reliance Wire & Iron Works with its servants and employees. Tbe contract and its performance on tbe part of tbe elevator company did not create any privity or contract relations between it and tbe plaintiff, as an employee of tbe Reliance Wire & Iron Works, who bad nothing to do with tbe operation or use of tbe elevator and was not attempting to operate or use it at tbe time of tbe accident. It is impossible to say, we think, that tbe elevator company stood in any relation to tbe plaintiff by reason of which it owed him any special duty, and equally so to bold that it bad invited him, impliedly or otherwise, to approach tbe elevator or to come and be at work near tbe foot of tbe elevator shaft, in respect to a matter having no relation whatever to setting up, perfecting, or operating tbe elevator while it was on trial. Tbe defendant was acting in tbe proper conduct of its lawful calling in setting up and putting in proper use one of tbe machines it bad manufactured in tbe course of its business, and it was under no duty or obligation to furnish a safe place for tbe servants or employees of tbe Reliance Wire & Iron Works to work outside of tbe elevator, or a safe way of passage through tbe building at or near it. There is no claim that tbe defendant obstructed tbe place where tbe plaintiff or any servants or employees of tbe Reliance Wire & Iron Works worked, or any way they were accustomed to use in passing into or [502] through the building. The duties devolved on the defendant by its contract related to matters with which it does not appear that the plaintiff had any concern or was in any manner connected. We think the case is clearly distinguishable from Crane Elevator Co. v. Lippert, 11 C. C. A. 521, 63 Fed. Rep. 942; Bennett v. Railroad Co. 102 U. S. 577; Bright v. Barnett & Record Co. 88 Wis. 299, and other cases cited by the appellant. There was no privity or contract relation between the plaintiff and defendant, and there was no allurement or implied invitation on the part of the latter to cause the plaintiff to approach, or be near the foot of the elevator shaft, or even in the building. If this action could be maintained upon the allegations of negligent and improper construction of the elevator, it would follow that any one actually using it, and receiving injury in consequence, — a much stronger case than the present,— might maintain an action against the manufacturer. This would be to introduce a rule which, we think, is not sustained by authority, and might lead to serious consequences. The case falls, we think, within the rules acted on in Winterbottom v. Wright, 10 Mees. & W. 109; Collis v. Selden, L. R. 3 C. P. 498; and Heaven v. Pender, 11 Q. B. Div. 514. In Collis v. Selden the defendant had negligently and improperly hung a chandelier in a public house, knowing that the plaintiff and others were likely to be therein and under the chandelier, and, unless properly hung, it was likely to fall upon and injure them; and, the plaintiff being lawfully in the public house, the chandelier fell upon and injured him; and it was held that the declaration was bad, in that it did not disclose any duty by the defendant towards the plaintiff for the breach of which an action could be maintained. This case was referred to in Elliott v. Hall, 15 Q. B. Div. 320, and it was said by Gmove, J., that “ the case was really decided on the ground of uncertainty of the declaration as [503] to the relation between the plaintiff and defendant.” And the case of Elliott v. Hall, supra, relied on by the plaintiff here, went upon the ground that in that case “ a duty arose on the part of the defendant towards the plaintiff,” because the defendants, the vendors of coals, forwarded them to the purchasers in trucks, and the goods were necessarily to be unloaded from such trucks by the purchasers’ servants; that there was “a duty on the part of the vendors towards those persons who necessarily would have to unload or otherwise deal with the goods to see that the truck or other means of conveyance was in good condition, so as not to be dangerous to such persons.” The plaintiff, a servant of the purchasers, was injured by reason of a defective truck, in unloading it, and which had been sent by the vendors to the purchasers, loaded with coal. That case is clearly distinguishable from the present one, and falls far short of sustaining it. Here the plaintiff was not riding in or using the elevator, and had in. fact nothing whatever to do -with it, and there is therefore an entire absence of the duty held to have existed in Elliott v. Hall. The case of Hayes v. P. & R. C. & I. Co. 150 Mass. 458, is, in substance, the same, and rests upon a duty arising from invitation. The following cases also show, we think, that the action cannot be maintained: Longmeid v. Holliday, 6 Eng. L. & Eq. 562; Losee v. Clute, 51 N. Y. 494; Necker v. Harvey, 49 Mich. 517; Loop v. Litchfield, 42 N. Y. 351. 2. It was contended that the defendant was liable as for a breach of duty imposed upon it at common law to avoid acts the natural and probable consequences of which would be imminently dangerous to the lives or persons of others. Elevators such as this are in such universal use that we cannot say that one placed in position and in use is per se a machine, device, or appliance imminently dangerous to the lives of others, or that serious injury to any person using, operating, or approaching or being near one would be a [504] natural or probable consequence of sucb use. A steam boiler, by reason of defects in material or workmanship, may explode, causing serious injury or loss of life; but it cannot be maintained that one who had manufactured and sold such boiler, in the absencé of actual knowledge of such defects or of fraud, would be liable for the consequences of such explosion. Losee v. Clute, 51 N. Y. 494. And we think the-same rule applicable to the present case. There is no claim that the defendant had acted recklessly or in bad faith, or that it had any notice in fact that the elevator was defective and that the particular injury to the plaintiff or injury to any one would be the natural and probable consequence of its use and operation. The allegations of the complaint are not sufficient to show that there was any breach by the defendant of the common-law duty relied on. For these reasons, we think that the demurrer was properly sustained. By the Gourt.— The order of the superior court is affirmed.