Crane Co. v. Sobkowicz

131 Ill. App. 211, 1907 Ill. App. LEXIS 28

• Court: Appellate Court of Illinois
• Decided: January 21, 1907
• Docket: Gen. No. 12,952
• Status: Published

Opinion

Mr. Justice Adams

delivered the opinion of the court.

The first question presented by the record is, what duty, if any, did the defendant owe to the plaintiff. The plaintiff testified that on Tuesday, when she was on the fourth floor of the building the second time, Miss Otten, the forewoman, told her to return the next day. This is expressly denied by Miss Otten. The plaintiff does not claim that she was told by Miss Otten, or any one, to use the elevator, and Miss Otten expressly says, that, on the second occasion, when plaintiff was there, the plaintiff did not speak to her about work; that she told the girls she had no work, and did not tell them to come back the next day, and did not tell plaintiff to use the elevator. Therefore, so far as appears from the evidence, plaintiff was not invited to-ride on the elevator, but did so voluntarily and for her own convenience. It was not necessary for her to go to the fourth floor by the elevator. There was a stairway back of the elevator, in plain view, by which she could have ascended to the fourth floor. Miss Otten, called by plaintiff, testified that there was a stairway back of the elevator, and any one could see it, and also what kind of elevator it was; also, that she had nothing to do with the girls who came there till they applied for work at her room, and then it was her duty to say whether she wanted them or not. It is true that Miss Otten testified that girls looking for work had come up to her floor by the elevator; but this, certainly, could not have operated as an invitation to plaintiff to take the elevator. She testified, at the trial, which occurred in January, 1906, that she was nineteen years of age, so that, at the time of the accident, she was about eighteen years of age, and old enough to know the difference between a passenger and a freight elevator. We are of opinion that the plaintiff, in using the elevator, was not using it by invitation, and that she was, at the utmost, a mere licensee, and as such, the sole duty which defendant owed her was to refrain from wilful or affirmative injurious acts toward her. Gibson v. Leonard, 143 Ill. 182, 189. See, also, as to the duty of the owner of premises to persons on the premises by mere permission and without invitation: Gibson P. & Co. v. Sziepienski, 37 Ill. App. 601; Chicago & Aurora S. & R. Co. v. Collins, 43 ib. 478; Bentley v. Loverock, 102 ib. 166; Parker v. Portland, 69 Me. 173, 176, et seq.

In Gibson v. Leonard, supra, the plaintiff, a member of a fire patrol, entered the defendant’s building to, extinguish a fire therein. While on an elevator in the building, the rope which held up the counterweight of the elevator broke and the counterweight fell on his leg and injured it so that it had to be amputated. The court held that he had license by law to enter the building, for the purpose aforesaid; but there having been means of access other than the elevator to the place in the building, where his services were required, there was no implied license or invitation for him to use the elevator; and the court affirmed the judgment of the trial court for the defendant.

The evidence is conclusive that the accident occurred at the halfway floor between the first and second floors. The physical facts are such that it could not have occurred at any other place on the west side of the elevator shaft. The accident happened on the west side of the elevator, and between the first and second floors, and the yest side of the shaft was a continuous wall from the basement to the second floor and above that floor, with the exception of an opening four feet in height at the halfway floor, and the space between the elevator and the west wall, and between the elevator floor and the halfway floor, when it and the elevator floor were on the same plane, was only two inches. Necessarily, therefore, the plaintiff could only have gotten into the elevator shaft between the first and second floors, without getting partly, at least onto the halfway floor, and falling thence into the shaft. Her hat was found on the halfway floor.

In Egan v. Berkshire Department Ass’n, 10 N. Y. Supplement, 116, the accident was quite similar to that in this case, and the court, Larremore, O. J., delivering the opinion, says:. “ Such facts as are shown convince me that the deceased originally fell down inside the elevator through vertigo, fainting or loss, of consciousness;” and it was held that there could be no recovery.

The evidence of Smith, quoted in the preceding statement, is, that the elevator, at the time of the accident, was in good condition, that it was of a kind most frequently used for freight, that whatever jerky motion it had is common to all elevators of its construction, and that this motion only occurs when it is being started, or is running slowly, and that there is no way of obviating this. It is also the uncontradicted evidence, that, at the time in question, there was no unusual motion of the elevator, and that the elevator could not jerk sideways more than three-sixteenths of an inch, because of the guides on its sides.

Plaintiff, on the two days next before the day of the accident, had ascended in the elevator to the fourth floor twice and descended from it twice. Therefore, she had ample opportunity to become acquainted with its motion. The two girls, Tony Hosek and Mary Papisz, testified that, on the day of the accident, there was no unusual • motion. of the elevator, and Mary Papisz testified that nothing happened to attract her attention till she heard the plaintiff had fallen., Neither of these two girls experienced any mishap or inconvenience from the motion of the elevator, and, if plaintiff was in a normal condition, physically and' mentally, and in the exercise of ordinary care for her safety, it is difficult, if not impossible, to suppose that she could have been thrown down by the motion of the elevator described by the witnesses.

We cannot concur in the contention of plaintiff, that the accident was caused by defendant’s negligence as charged in the declaration. Our conclusion is, that the accident was a mishap and without fault on defendant’s part.

The judgment will be reversed.

Reversed.