| Ill. App. Ct. | Nov 11, 1890
The appellant, Gibson, was a member of the Eire Insurance Patrol in the city of Chicago, and as. such no question is made as to his duty and right to enter a burning building at any hour of day or night to save property therein.
The appellee was the owner of a building on West Lake street in Chicago, occupied for business purposes, the ground floor and basement as a wholesale liquor store. The appellee had demised that portion of the premises, but four weeks before the accident, which is the subject of this suit, and the defects which arc complained of, if they were defects, existed at the time of the demise.
T-Tis responsibility is, therefore, the same as if he had occu- • pied the premises himself. The authorities are collected in Wood on Landlord and Tenant, Sec. 539- Even an agent of the landlord, having control of the premises, is responsible for their condition when demised. Baird v. Shipman, 132 Ill. 16" date_filed="1890-01-21" court="Ill." case_name="Baird v. Shipman">132 Ill. 16.
The supposed defects complained of, were in a hoisting apparatus, called by the appellant an elevator, between the basement and ground floor. When the appellant went into the building, near midnight on the 28th day of May, 1888, the platform of this elevator was at the bottom of the basement, with a load upon it. Other members of the patrol put that load off, and raised the platform to the. first floor.
Under the direction of the officer in command of, the patrol, the appellant and five others of the patrol then got upon the platform to go into the basement, and when near the bottom the rope holding the counter weight broke; the weight fell upon the appellant’s leg, and as a consequence it became necessary to amputate it near the hip. Evidence was put in on both sides, but the court instructed the jury to find for the defendant.
If the appellee can be made liable under the circumstances stated, the questions of any defects in the elevator, and of care by the appellant and his associates in using it, should have been, being questions of fact, left to the jury. But the duty of the appellee is a question of law. That is, the question whether, upon the facts stated in the declaration, the appellee owed any duty to the appellant, is a question of law; whether thei^ were proved would be for the jury.
The first branch of this proposition is the point of the decision in Seymour v. Maddox, 16 A. & E. N. S. 326. An allegation of duty, in words, is always surplusage; if the facts stated raise the duty, the allegation is unnecessary; if they do not, it is unavailing. See case last cited above.
The appellant relies upon Parker v. Barnard, 135 Mass. 116" date_filed="1883-05-07" court="Mass." case_name="Parker v. Barnard">135 Mass. 116, as a conclusive authority in his favor. A statute provided that guards should be around elevator shafts. A policeman, in the discharge of his duty, stepped into the entrance to the elevator in the night, and because there was no guard around it, fell in and was injured. He was held entitled to recover, and that he was within the class or classes for whose protection the statute was enacted.
To give this case a similitude to that, the declaration sets out several sections of city ordinances as to the construction and inspection of elevators, and guarding machinery, and the appellee insists that as he proved the allegations of his declaration, he was entitled to a verdict, whether his declaration is good or not.
Ho qase has been cited, and doubtless none can be found, that holds that a proprietor of any kind of mechanical movement is under any duty, when he closes his place of business at night, with the mechanism at rest, to leave it in such condition that a stranger, under any stress of duty, may enter during the night and operate it with safety. It is not a trap or pitfall into which one might walk when exercising all reasonable care. If any of the ordinances had any relation to this hoisting apparatus, the neglect of what they required, did not add anything to the duty the appellee owed to anybody whom he had not in fact, invited, expressly or impliedly, to use it, or for whom, by law, he was not required to keep it ready for use. Armstrong v. Medbury, 67 Mich. 250" date_filed="1887-10-20" court="Mich." case_name="Armstrong v. Medbury">67 Mich. 250; Mathews v. Bensel, 51 N. J. Law, 30.
The law gives a license to enter upon private property to save property from fire (Cooley on Torts, 313, star page), but charges the proprietor with no duty toward those who enter. Ibid. 304.
Full proof of a declaration showing no cause of action ' and that can not be made better by any amendment, does not entitle the plaintiff to a verdict. U. S. Rolling Stock v. Chadwick, 35 Ill. App. 474" date_filed="1890-03-10" court="Ill. App. Ct." case_name="United States Rolling Stock Co. v. Chadwick">35 Ill. App. 474.
The case was rightly decided in the Superior Court and the judgment is affirmed.
Judgment affirmed.