118 Ill. App. 220 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The alleged negligence causing, it is said, the injury for which appellee has recovered, is found in the supposed misconduct of the elevator boy, who is charged with “carelessly, negligently, wrongfully and improperly and suddenly and violently” starting the elevator down “with great suddenness and without any warning to the plaintiff,” while the latter at the operator’s request was closing the door to the elevator on the first floor, through which door the plaintiff had just entered the lower or freight compartment of the car. The evidence of appellee tends to sustain this contention. In behalf of appellant, on the other hand, the operator contradicts the statement that he requested the plaintiff to close.the door. He with a number of other witnesses testifies that the elevator was so constructed and operated that it was impossible for it to be started suddenly and swiftly as appellant says it was. Upon this point, the speed with which the elevator could be started, the preponderance is clearly in favor of appellant.
There is no brief for appellee, and we are without aid from him or his attorneys. We find in the testimony given in behalf of appellant by the elevator boy, the following: “As I was lowering down, he was trying to shut the gate, and his fingers were caught between the first floor. I seen the tip of his fingers on the floor, between the floor and the elevator. There is a space of about an eighth of an inch between the woodwork of the shaft and the car. I throwed the lever-back and tried to stop the elevator, and I couldn’t stop it; she slid on me. I was going awful slow at the time.” And again on cross-examination the same witness states: “The elevator slides sometimes. I don’t know what made it slide this time. It didn’t stop till it got down to the bottom. It slid half a foot. It slid just as I was going to stop her. .1 saw his fingers on the first floor after I started the elevator, while the machine was moving.” From this it appears that there was some defect in the elevator which prevented it being stopped. The jury were justified in believing from this evidence that had it not been for such defect the elevator would have been stopped in time to prevent the injury. The boy corroborates appellee’s statement that he was trying to close the door. If the elevator was defective and out of order we cannot say that the jury were wrong in believing tFat the injury may have been directly caused by such defect and in the manner charged in the declaration. It is well settled that persons operating elevators are carriers of passengers, whose duty it is to use extraordinary care in and about their operation so as to prevent injury to persons thereon. Hartford Dep. Co. v. Sollitt, 172 Ill. 222-225; Chicago Exchange Building Co. v. Nelson, 197 Ill. 334; Beidler v. Branshaw, 102 Ill. App. 187-191; Springer v. Ford, 189 Ill. 430-434. The liability of persons owning and operating a freight elevator is measured by the same rules, and they are held to the same degree of diligence. Springer v. Ford, supra, p. 437. And when a passenger is injured by the giving way of some portion of the machinery or appliances in a way unexplained, the presumption of negligence arises, and a prima faeie case is made out by showing that the accident occurred. Idem, p. 435, 436.
The declaration is open to criticism, but we thiuk its obvious defects are cured by the verdict. It is at the most a defective statement of a good cause of action. C. & E. I. R. R. Co. v. Hines, 132 Ill. 161-166.
We need not follow appellant’s brief in its detailed criticism of certain of the instructions, inasmuch as none of the alleged defects seem to us to touch upon points of a character such as to mislead the jury or to be harmful to appellant, although we are by no means to be understood as approving them all. The successful effort of appellee’s attorney to get before the jury, in spite of the court’s ruling, an assertion that the case was being defended by another party instead of the defendant, with the manifest purpose of creating a prejudice injurious to the defense, is we think more serious ground upon which to ask for a reversal; but as the point is not raised more need not be said of it.
' The judgment of the Superior Court must be affirmed.
Affirmed.
