Summary
In Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31 (1956), the Supreme Court of Ohio held a company who has contracted to service and examine the mechanical equipment of another owes a duty of ordinary care in the performance of its obligations to persons lawfully using the equipment.
Summary of this case from Sens v. Fitness Int'l LLCOpinion
No. 34790
Decided December 19, 1956.
Elevators — Contract to service mechanical equipment — Due care required — Negligence — Liability in tort to third person — Right of action directly against contractor — Motion for directed verdict — Evidence construed, how — Test to be applied — Not sufficient to support motion, when — Weight of evidence and credibility of witnesses not for court's determination.
1. In an action for damages grounded on negligence and tried before the court and a jury, a motion to direct a verdict for one of the parties requires that the evidence be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in disposing of such motion.
2. Where one, under a written contract, undertakes to service and examine the mechanical equipment of another and make a report on the condition thereof, and the equipment is of such a nature as to make it reasonably certain that life and limb will be endangered if such work is negligently performed, he is chargeable with the duty of performing the work in a reasonably proper and efficient manner, and if such duty is negligently or carelessly performed whereby injury occurs to a blameless person, not a party to the contract and lawfully using such equipment, such injured person has a right of action directly against the offending contractor. Liability in such instance is not based upon any contractual relation between the person injured and the offending contractor, but upon the failure of such contractor to exercise due care in the performance of his assumed obligations.
3. In an action for damages for such injury, upon a motion to direct a verdict for the defendant at the close of plaintiff's evidence in chief, the proper test to be applied is whether there is substantial evidence that defendant was negligent in performing or in failing to perform his assumed duties of servicing and examining the equipment and whether such negligence, if any, was a proximate cause of plaintiff's injury. If plaintiff by his evidence meets such test, it is prejudicial error to direct a verdict in defendant's favor.
APPEAL from the Court of Appeals for Hamilton County.
This case presents the question of whether a verdict was properly directed against William T. Durham, plaintiff, in favor of The Warner Elevator Manufacturing Company, defendant, at the close of plaintiff's evidence in chief.
The La Normandie Maisonette conducts a restaurant in premises located on Walnut Street in the city of Cincinnati. About the year 1928, a Warner electric push-button freight elevator was installed in such premises, operating between the so-called first or street floor and the subbasement, a distance of some 23 feet.
Plaintiff is a long-time employee of the restaurant and, before receiving the injuries hereinafter mentioned, performed duties as porter and dish and pot washer. Shortly before midnight on September 24, 1953, he was transporting on the elevator several cans of garbage from the subbasement and basement to the first floor for delivery to a garbage collector. The elevator reached the first floor and stopped and then suddenly and without warning dropped all the way to the bottom, causing serious physical injuries to the plaintiff.
Plaintiff brought his action for damages against defendant in the Court of Common Pleas of Hamilton County, predicated upon defendant's alleged negligence and carelessness in failing to fulfill its obligation under a certain written "service contract" entered into on April 8, 1953, between the La Normandie Maisonette and the defendant.
Such service contract, the existence and terms of which are not in dispute, reads in its pertinent parts as follows:
"We agree to furnish Warner service on one (1) Warner freight elevator located at La Normandie Maisonette, 505 Walnut Street, Cincinnati, Ohio, from April 6, 1953, and thereafter until this agreement is terminated by either party on thirty (30) days notice, in writing.
"For the sum twenty-one and 20/100 * * * dollars ($21.20) per month payable monthly.
"* * *
"We are to furnish cleaning solvents, wiping cloths, and the necessary oil and grease for the proper lubrication of this elevator.
"This service to consist of weekly examination of the elevator excepting signal devices, including oiling and cleaning machine, motor and controller, greasing or oiling bearings and guides, and making necessary minor adjustments at the time of regular examination * * *.
"This agreement does not include any labor or material for making repairs or alterations to any part of the elevator equipment or enclosures or furnishing new cables.
"This agreement is subject to terms and conditions printed on the back hereof, which are expressly made a part of this agreement."
The terms and conditions on the back of the instrument recite:
"It is expressly understood, in consideration of our performance of the service enumerated at the price stated, that nothing in this agreement shall be construed to mean that The Warner Elevator Mfg. Company assumes any liability on account of accidents to persons or property, except those directly due to the negligent acts or omissions of The Warner Elevator Mfg. Company or its employees * * *. The Warner Elevator Mfg. Company shall not be held responsible or liable for any loss, damage * * * or by any cause beyond its reasonable control, whether or not the same is herein specified * * *. No work, service or liability on the part of The Warner Elevator Mfg. Company other than that specifically mentioned herein, is included or intended."
Under date of April 6, 1953, defendant wrote a letter addressed to and received by the restaurant, reading as follows:
"Thank you very kindly for the order given us this afternoon * * * to inspect and service your Warner freight elevator under the Warner weekly service plan.
"This order has been entered and the initial inspection under this plan will be made tomorrow.
"Formal contract is enclosed.
"The service covered by this contract consists of a weekly examination of the entire elevator. During this examination the engine, motor, controller, and brake are thoroughly cleaned, oiled, and greased. Burnt and pitted contacts on the controller are dressed, the brake adjusted if necessary, and the floor stops set if required. The various adjustments between the motor, controller, brake, and control mechanism are synchronized. The guides are oiled or greased as best suited to the purpose.
"* * *
"On completion of each examination a brief but comprehensive report is left outlining the general condition of the elevator and calling to your attention anything you should know concerning its condition and/or operation.
"The mechanics assigned to this class of work are fellows who have gone through the school of experience in elevator design, manufacture, construction, repair, and maintenance, and do develop an uncanny ability to detect maladjustments and correct them before they reach damaging proportions. In this way many extensive and expensive repairs are forestalled and a lot of aggravating shutdowns eliminated entirely.
"You will note that the contract submitted can be cancelled by either party on 30 days notice in writing. This clause places us on probation all the time. If at any time the service is not everything that we claim for it or everything that you expect of it, you may exercise your privilege. A trial is all that we ask * * *.
"Sign one copy of the contract and let us prove to you that through this service we can keep your elevator in the safest and most efficient condition at a minimum maintenance expense."
Written inspection reports, as described in defendant's letter, were prepared and delivered to the restaurant. Several of them specify certain needed repairs which were made, presumably at the restaurant's expense. The last report prepared and delivered the day before plaintiff's injury is as follows:
"The Warner Elevator Mfg. Co.
"Inspector's Report
"Date, September 23, 1953.
"Name, La Normandie Restaurant.
"We have this day examined your elevators, composed of 1 freight * * * (in accordance with terms of our contract, and the conditions on back hereof) and found same to be in good condition excepting as stated below:
"No exceptions.
"Dick Schlaechter, Inspector
"Maisonette La Normandie, Proprietor."
On the trial of the action, plaintiff presented as his witness the supervisor of elevator inspection for the city of Cincinnati who examined the elevator on the morning of September 25. He found that the cable raising and lowering the elevator had come off the supporting sheave or wheel "that carries the cable that carries the elevator." He testified further that "we found that the safety jaws on the elevator were worn badly and were not functioning or could not possibly function properly because in a free fall those jaws should have grabbed the rail and stopped the elevator"; that, in the event the cable jumped the sheave, the safety jaws would hold the elevator; and that "we believe they (the safety jaws) were worn too bad to stop the elevator in its fall."
Another of plaintiff's witnesses, also a porter at the restaurant, testified that on the afternoon of the night plaintiff was injured he (the witness) was using the elevator when "it went down," "it didn't stop at the floor, about that far below the floor." This witness immediately notified the restaurant proprietor of what had happened. The defendant was then contacted and sent a workman who worked on the elevator for about an hour. The witness testified further:
"Q. After he finished the work, did he say anything to you? A. I asked him if the elevator was all right. He said, `Yes, sir,' that it was O.K., and I came down on it."
When plaintiff rested his case in chief, counsel for defendant made the following motion orally:
"At this time, if Your Honor please, I wish to move the court to withdraw the consideration of this cause from the jury and to direct a verdict for the defendant, for the reason that the evidence adduced has not shown a prima facie case against the defendant, The Warner Elevator Company."
Such motion was granted, and the jury was directed to sign a verdict for the defendant. This was followed by judgment.
On appeal, such judgment was affirmed by the Court of Appeals without written opinion, and the cause is now before this court for decision pursuant to the allowance of a motion to require the Court of Appeals to certify the record.
Mr. Leo J. Brumleve, Jr., and Mr. Sidney C. Brant, for appellant.
Messrs. Rendigs, Fry Kiely, for appellee.
At the outset, we note the established rule that in the face of a motion to direct the jury to return a verdict for one of the parties to an action, which in effect is a demurrer to the evidence, the court must construe the evidence most strongly in favor of the party against whom the motion is made, and, where there is substantial competent evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in disposing of such a motion. Wilkeson, Admr., v. Erskine Son, Inc., 145 Ohio St. 218, 61 N.E.2d 201; Hilleary v. Bromley, 146 Ohio St. 212, 221, 64 N.E.2d 832, 837; Purdy, Admr., v. Kerentoff, 152 Ohio St. 391, 89 N.E.2d 565.
Based largely on pronouncements contained in the English case of Winterbottom v. Wright (1842), 10 Mess. Wels., 109, 152 Eng. Rep., 402, a general rule of wide acceptance in this country for many years was that a contractor, manufacturer or vendor is not liable to third persons, who have no contractual relations with him, for negligence in the construction, manufacture or sale of the articles which he produces and distributes.
At least two exceptions to this general rule were recognized, i. e., (1) one who negligently produces an article or substance which is imminently dangerous to the life or health of mankind and which is intended to preserve, destroy or affect human life is amenable to an action by persons who suffer from such negligence and (2) one who sells or delivers an article, which he knows to be imminently dangerous to life or limb, without notice of its harmful qualities, is liable to any person who suffers a reasonably to be anticipated injury therefrom, whether there was any contractual relations between the parties or not. See annotation, 156 A.L.R., 481.
As judicial thought became more liberal, exceptions to the general rule were enlarged, and in 1916 the Court of Appeals of New York decided the notable case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916 F, 696, Ann. Cas. 1916 C, 440, in which it was held that an article need not be inherently or imminently dangerous to constitute an exception to the general rule; it is enough if it is such as to make it reasonably certain that life and limb will be endangered by its negligent preparation or construction, and, where a manufacturer places a defective wheel on a motor vehicle, the ordinary and customary use of which may entail an undue or unreasonable risk of harm, a remote user who purchases the motor vehicle from a dealer and is injured because of the wheel's defective condition may successfully maintain an action based on negligence directly against the manufacturer, irrespective of any privity of contract between them. See Thrash, a Minor, v. U-Drive-It Co., 158 Ohio St. 465, 110 N.E.2d 419.
The advanced position taken in the MacPherson case is in line with a rule that has found favor with a number of courts, which is that, where one, for a consideration, undertakes to provide an inspection or examination service for the mechanical equipment owned or controlled by another, the former is thereby charged with the duty of performing those services in a reasonably proper and efficient manner, and, if such duty is negligently or carelessly performed whereby injury occurs to a blameless person lawfully using such equipment, such injured person has a right of action directly against the offending contractor. Liability in such instance is not dependent upon any contractual relation between the person injured and the contractor but on the failure of the contractor to exercise due care in the performance of his obligation. Compare Van Winkle v. American Steam Boiler Co., 52 N.J. Laws, 240, 247, 19 A. 472, 475. See 2 Restatement of the Law of Torts, 843, Section 311, Illustration 1.
A representative case in which the above principle was applied with respect to an elevator is that of Dahms v. General Elevator Co., 214 Cal. 733, 7 P.2d 1013. There an elevator operator sued to recover for personal injuries sustained when the elevator on which he was riding fell. Plaintiff was an employee of the owner of the elevator who had contracted with the defendant for the latter to keep the elevator in running order and to make periodic inspections thereof. The Supreme Court of California held that the evidence produced on the trial was sufficient to sustain the verdict against defendant, grounded on its negligence in making repairs or in negligently failing to discover a defect in the safety device on the elevator which did not function when the elevator started to fall. As in the instant case, defendant contended that it owed no duty of care to plaintiff, because there was no contractual relation between them. Near the close of the per curiam opinion in the California case, it was remarked:
"We are of the opinion that the jury could properly find that the accident was proximately caused by reason of the fact that the defendant * * * negligently failed to discover that the hoisting shaft was defective, and that the elevator continued to fall by reason of defendant's negligence * * * in negligently failing to properly inspect the same. Defendant * * * is * * * chargeable with knowledge that if an accident should occur and the safety device did not work the car would be precipitated to the basement and the operator injured. In such a case we think that defendant was under a duty to plaintiff to use ordinary and reasonable care in the repair and inspection of the elevator, and where as here the jury finds that defendant negligently performed its duties, and such negligence proximately contributed to the injury, the liability of defendant to plaintiff is clear."
Although the plaintiffs were not successful in all of them, other cases recognizing the validity and force of the principle adopted in the California case are Westinghouse Electric Elevator Co. v. Hatcher (C.C.A. 5), 133 F.2d 109; Blackhawk Hotels Co. v. Bonfoey (C.C.A. 8), 227 F.2d 232; Wolfmeyer v. Otis Elevator Co. (Mo.), 262 S.W.2d 18; Bollin v. Elevator Construction Repair Co., Inc., 361 Pa. 7, 63 A.2d 19, 6 A.L.R. (2d), 277; Sheridan v. Aetna Casualty Surety Co., 3 Wn.2d 423, 100 P.2d 1024. Compare the recent cases of Witherspoon v. Haft, 157 Ohio St. 474, 106 N.E.2d 296, wherein the principle was also recognized and applied, and Thrash v. U-Drive-It Co., supra.
Now, let us turn to the instant case. In its "service contract" with the restaurant, defendant agreed to furnish "Warner service" on the elevator herein involved, consisting of "weekly examination of the elevator * * * including oiling and cleaning * * * and making necessary minor adjustments at the time of regular examination." Excluded from coverage under the contract are the cost of any labor expended, materials used in making repairs or alterations to any part of the elevator equipment or enclosures, and the furnishing of any cables. The contract provides that the defendant assumed no liability on account of accidents except those directly due to its negligent acts or omissions or to those of its employees.
Although a purpose of the letter written by the defendant to the restaurant on April 6, 1953, was to induce the signing of the contract, it contains also language representing defendant's practical interpretation of the contract and the obligations it assumed thereunder. For example, the letter recites that the service covered by this contract embraces "a weekly examination of the entire elevator," and "on completion of each examination a brief but comprehensive report is left outlining the general condition of the elevator and calling to your attention anything you should know concerning its condition and/or operation." And the fact is that defendant did examine the elevator and made inspection reports regularly in accordance with its letter.
Thus, the contract as interpreted and executed by the defendant covers the servicing and examination of the elevator and, in connection therewith, the preparation and submission of a written report as to its condition, with a notation of needed repairs or replacements.
Certainly the safety device to prevent the elevator from falling in the event of mechanical failure or for any other reason is an important part of the elevator's structure, and nothing appears from the evidence herein to except such device from the examination which the defendant agreed to and was paid to make.
As has already been pointed out, the supervisor of elevator inspection for the city of Cincinnati, who examined the elevator shortly after it fell, testified that the "jaws" of the safety device were so badly worn as to be wholly ineffective to meet their intended purpose of keeping the elevator from falling.
In a situation of the kind described, the proper test to be applied is whether there is sufficient evidence before the court and jury at the close of plaintiff's case in chief to support a finding that defendant was negligent in failing to perform the duty, it assumed, to examine the elevator and report on its condition, and that such negligence was a proximate cause of plaintiff's injuries. We think plaintiff met that test. Therefore, the trial court committed prejudicial error in directing the verdict and entering judgment for the defendant, and the Court of Appeals likewise erred in approving such action.
The judgment of the Court of Appeals is reversed, and the cause remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
MATTHIAS, HART and TAFT, JJ., concur.
BELL, J., dissents.