No. 2,305 | 8th Cir. | Oct 6, 1906
after stating the case as above, delivered the opinion of the court.
The case was fairly tried. Full opportunity was given the plaintiff to prove his cause of action, if he had one. No obstacle, whether in the reception or rejection of evidence or otherwise; that impeded or prevented him from doing so, was erroneously interposed during the trial. Therefore, if at the conclusion of all of the evidence the absence of a cause of action was so clearly manifest that it was the •duty of the trial court to direct a verdict for the defendant, it is not material that in the discharge of that duty a wrong- reason was at first assigned. No possible prejudice to the plaintiff could have resumed from the selection of the wrong ground for the action of the court. He could not have been misled to his detriment. He was through with his proofs, and if they were insufficient the defect was past cure. In such a case, so circumstanced, if the destination was right it matters not what road was taken to reach it. If, as the court held after a verdict had been directed and returned upon an untenable theory, there was no substantial evidence warranting a recovery by the plaintiff, the verdict should not be disturbed.
We are of the opinion that the plaintiff made no case. The mere_ fact that the elevator fell upon the occasion in question does not give rise to a presumption or inference of negligence, since the deceased was an employé of defendant, and in such cases the doctrine res ipsa loquitur does not ápply. Railway Co. v. O'Brien, 67 C. C. A. 421, 132 Fed. 593. The evidence conclusively showed that the elevator was of an approved pattern, in general use, made b}’- a responsible concern, and had given very satisfactory service for some years. It also appeared that it had frequently been examined, and that a commendable degree of care had been exercised in inspection and supplying new parts as conditions required. About six months before the accident, the elevator was overhauled, and new guides upon which
There is no doubt that, when the deceased got upon the elevator platform where it was wedged at the second floor, another employe pulled the operating cable for a descent and caused the drum below to so revolve that the lifting cables, upon which the elevator hung, unwound; and, when the end of the truck was wrenched by deceased from between the elevator platform and the second floor of the building, and the elevator thus released began to fall, the hanging weight of the unwound cables, together with the friction of their passage oyer the wheels or pulleys above the elevator, prevented the spring from straightening out and sending the points of the dogs into the guide limbers. This was an unusual and exceptional condition caused by the ill-considered, thoughtless act of a fellow servant, and against which the safety device -was not designed to guard. Negligence of the defendant cannot be predicated upon it.
It is also claimed that the elqvator guides were placed too far from the points of the dogs to permit of operation, even when there was no tension upon the spring. This claim is the result of a misapprehension of the testimony of a witness who described the structure after it had been overhauled. He said that the play between the guiding shoes of the elevator and the upright guides upon which they moved was a half inch on each side, not an inch and a half, as contended. The foregoing conclusions dispose of the case.
The judgment is affirmed.