Hall v. Murdock, 114 Mich. 233

Hall v. Murdock

114 Mich. 233 | Mich. | 1897

Grant, J.

(after stating the facts). 1. Defendant Sarah contends that there was no evidence of negligence upon her part, for the reason that Mr. Murdock had a life interest in the premises; that he put in this elevator, received the rents, and controlled the' property. The plaintiff introduced evidence to the effect that leases had been made out in her name, and signed by her. The plaintiff called Mrs. Murdock as a witness, and she testified that, after the property “was deeded to me, he [Mr. Murdock ] was to have charge of the business. He was to collect rents. He was not to have the rents.” Upon cross-examination by her counsel, she testified that she was *237mistaken when she testified as above, and that the rents belonged to her husband. Under this testimony it was not error to leave the question of her liability to the jury, which the court did under proper instructions. She was a party in interest, and her contradictory statements were for the jury, not the court, to consider.

2. It is insisted that there was no evidence of negligence on the part of the defendants. We think there was evidence sufficient to submit the question to the jury whether the cable had become old and worn, and parted in consequence. The mere fact that it broke, under the decisions of this court, was no evidence of negligence. The cable had been in use when purchased by Mr. Murdock, and had been used by him about two years. One witness saw a piece of the cable as it was when purchased by Mr. Murdock, and testified that it was considerably worn. It is true, he did not testify that it was, in his opinion, sufficiently worn to be dangerous, but its condition in this respect was proper for the consideration of the jury in connection with the other testimony. Other witnesses also testified to statements made by Mr. Murdock to the effect that the cable was “worn out or played out;” that some of his tenants had used it had, and pretty much spoiled it, and that he had got to get a new one. Under evidence of this character, we think the question was properly submitted to the jury.

3. A more doubtful question is presented as to negligence in the use of this safety device. The evidence of the defendants shows that it was in common use in the vicinity of Albion. The sole testimony against the device used was given by a witness named Holtgren, who was introduced as an expert. He testified that there were other devices, better than this, which had been in common use some years. He also gave evidence tending to show that, if the cable parted in a certain place, the device could not work. But on cross-examination he testified: “I never had any experience personally with this kind of an elevator. Never had any experience with *238any elevator with spring safety device.” He, however, had shown some knowledge and experience of elevators and safety devices, and we are not prepared to hold that his knowledge and experience were not sufficient to justify his testimony as an expert.

There was, however, no testimony to show that this device, which was once in common use, was not proper for an elevator intended solely for freight. It is true that there was testimony tending to show that the occupants of this building sometimes rode upon this elevator in raising and lowering their goods, but this did not constitute it a passenger elevator, or make it the duty of the defendants to have it constructed with the same care that would be required in the case of a passenger elevator. We are, therefore, of the opinion that the evidence in this case was not such as to justify the court in submitting to the jury the question whether it was negligence to equip a freight elevator with it.

But the most difficult question arises upon the instruction that—

“If Mr. Murdock invited the plaintiff to ride upon the elevator, he thereupon made the elevator, so far as the plaintiff is concerned, a passenger elevator, and became liable for the degree of care which is required of the carrier of passengers.”

We are of the opinion that this instruction states the rule too broadly. It leaves out the other rule that, if plaintiff knew that this was not a passenger, but a freight, elevator, he assumed all the risks incident to carriage upon it. Owners are under no legal obligation to put safety appliances upon elevators not intended to carry passengers. Webb, Pass. & Freight Elevators, § 23; Kern v. Refining Co., 125 N. Y. 50. Under the instruction given, defendants were bound.to exercise the highest degree of care, and to use those appliances which experience had shown to be the most effective in securing the safety of passengers. When one knows that the elevator is designed for freight alone, he must be held to know *239that it is not equipped with the same regard for safety that a passenger elevator is or should be. This is the rule applicable to freight trains upon railroads. McGee v. Railway Co., 92 Mo. 208 (1 Am. St. Rep. 706); Oviatt v. Railway Co., 43 Minn. 300. When, therefore, one is permitted or invited by the owner to ride upon a freight train or elevator, such owner does not guarantee that either is equipped with the most approved appliances in use upon those carrying passengers, and, if he has provided those which are in common use, and has exercised reasonable care in inspecting, repairing, and managing them, he has done all that the law requires.

The mere fact that the occupants of this block rode upon this elevator is no evidence that defendants intended, it for that purpose, even if such use were known to them.

4. The injury to the plaintiff was vigorously contested by the defendants, and they introduced expert testimony tending to show that the injury resulted from other causes. Medical experts were placed upon the stand, who gave their experience in such diseases, and their opinions that plaintiff’s condition was not the result of the injury. Upon cross-examining these witnesses, counsel for the plaintiff called their attention to certain medical works, and, under objection and exception, read quite extensively to the jury. This was error, and we cannot hold that it was not prejudicial. The only circumstances under which medical books can be read in evidence are where the witness has based his opinions upon them, and has referred to them as authority. Pinney v. Cahill, 48 Mich. 584. The established rule is that it is incompetent to read from these books. Elwell (J. J.), Med. Jur. chap. 23; Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Mich. 75. This rule cannot be evaded upon cross-examination. Marshall v. Brown and People v. Millard, supra.

5. The court instructed the jury that—

“If you find that this cable and safety device and elevator were of an approved kind and make, and that it *240was set up and put into operation by skillful and competent mechanics, and that it was carefully watched by defendants, and was carefully inspected from time to time by a competent izispectoz’, and that no defects were or could have been discovered in the cable or safety device by a competent inspector, making a proper and careful inspection often enough to discover the defects in the same, if any, then the defendants have done all that the law would require,” etc.

There were only two grounds of negligence, as already shown. There was no evidence tendizig to show that the elevator outside the safety device was not of an approved kind and make, or that it was not properly set up, or that it was not carefully inspected by a competent inspector. The objection to this charge was that it left it to the jury to determine negligence from facts upon which there was no dispute. Defendants were entitled to have the jury instructed definitely and clearly as to the two grounds of negligence.

6. Complaint is made that the court erred in refusing to instruct the jury that Mr. Murdock was on the elevator, and exercised the same care for plaintiff’s safety that he did for his own, and that this was all the law required. There was no error in refusing this request. If he knew, or should have known, that there were defects, it was his duty to notify the plaintiff. Plaintiff was entitled to be informed as to the danger, if any, and then exercise his own judgment whether he would assume it. The fact that Mr. Murdock chose to assume it is no excuse for him when others are injured.

For the errors above noted, the judgment must be reversed, and a new trial ordered.

Long, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.