210 A.D. 212 | N.Y. App. Div. | 1924
The Keystone Warehouse Company owns and operates a warehouse in the city of Buffalo. The Marshlow Corporation was lessee of a portion of the first floor and the entire second floor of the warehouse building. It maintained an office on the second floor where it did business with its customers. Access to the second floor was by means of a small stairway at the rear of the building. There was no defined passageway leading to the foot of the stairway. The first floor was not subdivided. It consisted of one big room, broken by several rows of concrete pillars. About twenty feet from the front was the shaft of a large freight elevator. The entire front of the first floor was open during business hours. A landing platform outside the building extended the entire width thereof. A person going to the second floor from the landing platform could walk to the foot of the stairway across any part of the area unoccupied by goods. The ordinary way appears to have been to the left of the elevator shaft. There is evidence that when the elevator was at rest on the first floor, the guards at front and rear were up, and persons sometimes crossed the elevator on the way to the stairway.
Plaintiff, a customer of the Marshlow Company, on her way from the front of the building to the stairway, was crossing the elevator platform, at rest on the first floor, when it was suddenly started from above, throwing her off and injuring her. ■ She has a verdict against both defendants.
Whether the Keystone Warehouse Company had used such care and whether the plaintiff had herself been negligent were, on all the evidence, questions of fact for the jury.
The judgment against the Marshlow Corporation must be reversed The court charged the jury that the “ Marshlow Corporation owed a duty of care to its customers in seeing that the premises were safe; ” and further that “ the Marshlow Corporation was charged with some duty to see that there was a reasonably safe means of approach to its place of business and an exit therefrom.”
We think this was erroneous. The Marshlow Corporation was not the occupant, nor was it in control of that portion of the first floor used as a passageway for access to the stairs. It, therefore, owed no duty of care to keep the premises in a safe condition. (Loucks v. Dolan, supra; Nash v. Minneapolis Mill Co., 24 Minn. 501; Readman v. Conway, 126 Mass. 374.)
It appears from the evidence that the elevator was started from the second floor by one Kaufman, who did trucking for the Marshlow Corporation. Had Kaufman been an employee, the master might have been liable for his act. But the evidence shows pretty clearly that he was an independent contractor, although the court refused to so charge as matter of law. However, there is evidence that the elevator on previous occasions had thus been started by Kaufman and by other third parties. It may be that if the Marshlow Corporation knew or ought to have known of this practice, and failed to exercise reasonable care to stop it, as a result of which plaintiff was injured, liability could be cast upon it. (Hogle v. Franklin Manufacturing Co., 199 N. Y. 388.) Or it may be that a duty to warn its own invitees of a dangerous situation known to it rested on the Marshlow Corporation; and that liability might be predicated upon a failure to warn. (Smith v. Lederer, 157 Wis. 479; 3 S. & R. Neg. [6th ed.] § 704.) But it is not necessary now to so hold.
The judgment and order appealed from should be affirmed, with costs as to the defendant Keystone Warehouse Company, and reversed on the law and a new trial granted, with costs to abide the event, as to the defendant Marshlow Corporation.
Judgment and order affirmed, with costs as to defendant Keystone Warehouse Company. Judgment and order reversed on the law as to the defendant Marshlow Corporation and a new trial is granted as to said defendant, with costs to it to abide the event.
