61 A. 646 | R.I. | 1905
The plaintiff was an employee of one of the defendant's tenants and was injured by the falling of an elevator which the defendant maintained and operated in its building for the use of it tenants and their employees and customers. After verdict for the plaintiff the defendant brings its petition for a new trial, founded upon the allegations that the verdict is against the evidence; that the presiding justice erred in refusing to charge the jury as requested by the defendant; and that the damages were excessive. *249
The defendant's requests, which were refused, and to which exceptions were taken, were:
"1. The owner of a building containing a passenger elevator therein operated by such owner is not a common carrier, and not an insurer of the safety of persons using the elevator.
"2. If the jury find that the defendant used reasonable care and prudence in the construction, maintenance, and operation of the elevator, the verdict should be for the defendant.
"4. The plaintiff was without contract relations with the defendant, and, this being so, negligence can not be presumed from the fact of the accident alone, but some other fact must be proved by the plaintiff showing that the accident was due to the negligence of the defendant."
We think the first and second requests should have been granted. A landlord who maintains an elevator in his private building is not a common carrier, and a common carrier is not an insurer of the safety of passengers. And it seems to us unreasonable to say that such a landlord is to be held to the same degree of care which the law imposes upon a common carrier. The charge of the court was based upon the case of Marker v.Mitchell, 54 Fed. Rep. 637, which holds that the liability of a landlord maintaining an elevator and that of a common carrier of passengers are the same; that the standard for both is the highest degree of care which human foresight can suggest. This case is supported by Goodsell v. Taylor,
We can not assent to the reasoning on which they rely. It is true that whether a common carrier operates a stage-coach, a railway on the surface of the ground, or a railway up a mountain side, the law subjects him to a certain rule of responsibility, but the rule is imposed not on account of the danger of the journey, but because of his relation to the public. If a private person transports a friend in his coach or in his automobile, he is liable only for want of ordinary care, though the danger may be the same as in traveling by public coach or by railway.
The duty of a landlord towards those who enter upon his premises by implied invitation is to exercise reasonable care for their safety, and we see no reason for modifying the rule when he introduces and operates an elevator. He is not, like a common carrier, a servant of the public; his relations and duties are with a limited number of persons who have contracted with him for the use of his premises and others who have business with his tenants.
The doctrine of the cases cited above is examined and repudiated by the New York Court of Appeals in Griffen v.Manice,
The fourth request, if, as we understand, it includes in the word "accident" the injury and the surrounding circumstances, was rightly refused. While it is true that the mere fact that a passenger receives an injury, without regard to the circumstances which surround that fact, is not enough to throw upon the defendant the burden of explaining the cause of the injury (Fagan v. Rhode Island Co.,
As the defendant must have been prejudiced by the erroneous statements of the measure of its duty, a new trial must be granted, and it is unnecessary for us to comment upon the evidence presented.
The petition is granted, and the cause is remanded to the Common Pleas Division for further proceedings.