237 Pa. 8 | Pa. | 1912
Opinion by
The plaintiff was a fireman in the service of the City of Philadelphia, and in the performance of his duty, he entered at night a storage warehouse, owned and occupied by the defendant, for the purpose of extinguishing a fire. While on the third floor he fell through an elevator shaft and was injured. The defendant testified that at the close of business, on the day of the fire, a platform elevator loaded with furniture was left at the third floor in such a position that it closed the shaft and that it fell after the fire started because of the burning of a rope that kept it in place. This testimony was uncontradicted and its correctness was assumed by the court in submitting the case. The verdict rests on the finding by the jury that there was no guard or. gate at the elevator shaft. The single assignment of error is to the refusal of the court to direct a verdict for the defendant.
In considering the case on the ground on which it was submitted, it must be assumed that the premises were safe at the close of the business day and that they afterwards became unsafe because of an unforseen occurrence, and since at common law, the occupier of premises is not finder a duty of active diligence to project from harm a person who enters on the premises under a license from him or under one given by the law,
The act is entitled “An act to further regulate the construction, maintenance and inspection of buildings and party walls in cities of the first class.” Section 4 provides that, “In any building now existing, in which there is an elevator, dumb-waiter, interior light or vent shaft, hoistway, hatchway, chute, well-hole, or shaft of any description, not enclosed in walls constructed and arranged as required in this act, the openings thereof, through and upon each floor of said building, shall be provided with and protected by a substantial guard or vertical enclosure, and gate or gates, or with such good and sufficient trap doors, or both, as may be directed and approved by the Bureau of Building Inspection. Such guards or enclosure gates shall be kept closed at all times when not in actual use, and trap doors shall be closed at the close of the business each day, by the occupant or occupants of the building having the use or control of the same.”
The effect to be given to acts of assembly, of a like character requiring the guarding of machinery for the protection of employees has been considered in the recent cases of Jones v. Caramel Co., 225 Pa. 644; Valjago v. Steel Co., 226 Pa. 514, and Bollinger v. Sand Co., 232 Pa. 636, and it has been held that the violation, of the statute is at least evidence of negligence, and where its violation is the proximate cause of the injury, nothing but the contributory negligence of the employee will relieve the employer from liability. The Supreme Court of Massachusetts in Parker v. Barnard, 135 Mass. 116, held that under an act strikingly similar to our Act of 1903, regulating the construction of buildings, a policeman who entered a building at night and was injured by falling into an unguarded elevator shaft could recover. In the opinion of the court it was said, “Where,therefore, in the construction or management of the
The Act of 1903 was passed under the police power of the State. Tt is not restricted to a specific class but is general in its terms and it is a reasonable construction ■ to hold that it was passed for the benefit of all persons lawfully on the premises, and that as to them it creates a duty, the breach of which may be actionable negligence. The provision that guards and enclosure gates shall be kept closed at all times when not in actual use and that trap doors shall be closed at the close of each business day, indicates a purpose to afford protection to city officers such as firemen and policemen, who at any time may be required to come on the premises.
The judgment is affirmed.
