210 N.W. 1000 | Minn. | 1926
Mrs. Holmgren was injured by the fall of a manlift on which she was riding in defendant's elevator at Badger, Minnesota, on a Sunday afternoon in August, 1922. The elevator was new and had been open for use but a short time. It was in charge of one Hegberg, defendant's local manager. Plaintiff's wife is a sister of Mrs. Hegberg. On the Sunday in question it was not in operation nor open to the public for any purpose. Plaintiff, his wife and Mrs. Hegberg went to the elevator with and at the invitation of Hegberg. While there, for their own pleasure they tried out the manlift. It was a small passenger elevator with a capacity of only one person. Nothing could have been more clearly intended for use only by employes in the performance of their duties. It was hung on a counterweight and anyone desiring to operate it took his position on the open platform and then propelled it up or down by pulling on a stationary rope fastened to the top and bottom of the elevator shaft, which was open and consisted of only the two guides upon and between which the elevator operated. Mrs. Holmgren in her turn tried the lift, as already stated for her own pleasure, and while doing so she suffered severe injuries. The elevator upward bound gathered such speed that it crashed at the top, the cable broke, the safety device failed to work and both lift and occupant were precipitated over 40 feet to the ground floor.
The claim of negligence was predicated to start with upon the supposed absence of a safety device such as required by G.S. 1923, § 4152. That section is part of the factory law of the state and we are not now required to decide whether it is applicable to the case, for the issue as to whether the lift was equipped with the required safety appliance was found for defendant by the jury. The other issues were disposed of adversely to plaintiff by the trial judge. That is the ruling challenged by this appeal.
1. We think it a case of nonliability and that a verdict for defendant could well have been directed. Hegberg was clearly beyond the scope of his authority in inviting the others to the elevator. They were there on no business with defendant, none within the scope of Hegberg's employment, but solely for their own pleasure. *270
They were using the lift as a plaything. The case therefore is controlled by the rule of such cases as Slater v. Advance Thresher Co.
The general rule is that the master is not liable where the servant in charge of his vehicle goes beyond the scope of his employment to transport his guests for their own convenience or pleasure. Sweeden v. Atkinson Imp. Co.
2. It is argued for plaintiff that the rule res ipsa loquitur applied and also that the manlift was a dangerous instrumentality. We cannot see that either argument, even though we allow its validity, can affect the result. Plaintiff and his wife at the time being were at the best mere licensees and were using the instrumentalities of defendant without its permission and for their own purposes. Under one view, the only duty which defendant owed them was not to injure wilfully. 20 R.C.L. 57; Mazey v. Loveland,
3. Neither does the case come under any rule peculiar to dangerous instrumentalities. To some it might seem that a manlift *271
is no more dangerous inherently than a team of mules of less than the usual minimum of dependability. Such a team having "a tendency to run away," was held in Dover v. Mayes Mnfg. Co.
But all else aside, the agency of injury was not in use by defendant or by its permission at the time being nor off its premises, but had been appropriated to their own convenience by uninvited visitors. They are adults and cannot claim the protection which the law extends to children when they have been suffered to play, to their own hurt, with attractive but dangerous instrumentalities. So it is immaterial whether the instrument be considered dangerous inherently or dangerous only because of the manner of its use. In neither case would liability result. If, under the same circumstances, dynamite or gunpowder had been found on the premises and Mrs. Holmgren had been injured from an explosion resulting from the unauthorized use of the explosive for her own sport, there would have been no liability. Dahl v. Valley Dredging Co.
For plaintiff, much reliance has been put upon Barmore v. Vicksburg S. P. Ry. Co.
Order affirmed.