170 Mass. 283 | Mass. | 1898
The general condition of the elevator was such that a jury, might find that the defendant would be negligent in continuing its use for carrying workmen up and down while engaged in their work, if this was done without warning them of the risk. It is true that the particular defect which caused the accident was not open to observation or easy to discover. But there was evidence tending to show that the accident was caused by the use of the elevator while it was in a condition which rendered it unsuitable for use, and that the defendant was fairly put upon inquiry as to its safety; and that the defendant’s duty in this respect was different from and greater than that of the workmen themselves.
The question then remains whether the posting of the notices in the elevator
If one who has posted a notice of entire prohibition permits it to be habitually disregarded, as, for instance, a notice not to ride on the platform of a street railway car, or in the baggage car of a train, a practical invitation to violate it may be inferred from habitual usage which is known to him. Long continued practice to the contrary may have the effect to supersede or show a waiver of the rule. O'Donnell v. Allegheny Valley Railroad, 59 Penn. St. 239. Pennsylvania Railroad v. Langdon, 92 Penn. St. 21. Waterbury v. New York Central & Hudson River Railroad, 17 Fed. Rep. 671. The notice in the present case was not one of entire prohibition, but, in the opinion of a majority of the court, the plaintiff upon the evidence had a right to go to the jury upon the question whether it still remained in force; and, according to the terms of the report, there must be
Judgment for the plaintiff.
These notices read as follows: “ All persons riding on this elevator do so at their own risk.”