| Ill. | Dec 15, 1908
Lead Opinion
delivered the opinion of the court:
This was an action on the case commenced in the circuit court of Cook county by the appellee, against the appellant, to recover damages for a personal injury alleged to have been sustained by the appellee by the fall of an elevator in the appellant’s store building, upon which the appellee was riding. The jury returned a verdict in favor of the appellee for the sum of $10,000, upon which the trial court rendered judgment, which judgment has been affirmed by the Appellate Court for the First District, and a further appeal has been prosecuted to this court.
The declaration contained one count, which alleged that the appellant carried on a retail dry goods and general store in its store building in the city" of Chicago, and used and operated, in connection with its business therein,' a certain passenger elevator to carry passengers from floor to floor in said building; that the plaintiff was rightfully in said store and a passenger in said elevator; that he entered said elevator at the ninth floor for the purpose of being carried to the first or main floor of the building; that it was the duty of the defendant to carry him safely from said ninth floor to his destination, but in this the defendant failed and was guilty of negligence, in that while the plaintiff was in the exercise of due care for his own safety and was in said elevator as a passenger, the said elevator, and the machinery by which the same was operated, broke and gave way, and precipitated said elevator, with plaintiff, into the basement of said building, and he was injured, etc.
The first contention of the appellant is, that the declaration is not sufficient to support the judgment in this: that the plaintiff has not averred facts therein which show that he was rightfully in said elevator or that the relation of passenger and carrier existed between the plaintiff and the defendant at the time of the accident. The sufficiency of the declaration is challenged by motion in arrest of judgment. The relation averred to exist between the plaintiff and the defendant at the time the plaintiff was injured was that of passenger and carrier, and we are of the opinion the declaration, after verdict, was sufficient to support the judgment. In Chicago and Alton Railroad Co. v. Clausen, 173 Ill. 100" date_filed="1898-04-21" court="Ill." case_name="Chicago & Alton Railroad v. Clausen">173 Ill. 100, where the same contention was made as is made here, the declaration averred that the plaintiff became a passenger on a passenger train of the defendant at Dwight to be carried from that place to Gardner, and that while he, with due care, caution and diligence, was about to alight from the train at Gardner, the defendant carelessly and negligently caused the train to be violently and suddenly moved forward, and thereby he was thrown from and off the train to and upon the wooden platform of defendant; and in different counts it was alleged that defendant did not stop the train at Gardner a sufficient length of time to receive and let off passengers but suddenly started the train, whereby the plaintiff, who was attempting to alight, was thrown off. The averments of the declaration in that case were held sufficient after verdict, and if that declaration was good after verdict we are unable to see why the declaration in this case is not.
It is next contended that the facts proven do not establish that the relation of passenger and carrier existed between the parties at the time appellee was injured. The appellee testified he went to the store of the appellant to obtain employment; that he inquired of an employee of the defendant on the first floor for the superintendent; that he was told the superintendent was on the ninth floor and was directed to take the elevator to that floor; that he got off the elevator at the ninth floor and inquired for the superintendent and was informed that he was not in his office; that he returned to the elevator, the door of which was open, and entered the elevator; that the operator closed the door behind him and turned on the power, and the elevator immediately dropped to the basement floor; that the elevator was wrecked, the operator killed and he was severely injured. We think this evidence fairly tended to show that the appellee was rightfully in the elevator and'that the relation of passenger and carrier existed between the parties at the time the appellee was injured.
In an establishment like that of the appellant there is a general invitation to persons to enter who have business with the appellant. The appellant employs a large number of persons, and it was clearly lawful for the appellee to enter its store for the purpose of seeking employment, and upon being directed to the office of the superintendent and invited to use the elevator in going to his office he clearly was rightfully upon the elevator, and upon finding the superintendent out of his office he had the right to return to the first or main floor in the elevator. There was, at least, evidence introduced by the plaintiff fairly tending to show that the relation of passenger and carrier existed between the parties at the time the elevator fell and that the appellee was rightfully upon the elevator, and as those questions were questions of fact, or, at most, of mixed law and fact, (Springer v. Ford, 189 Ill. 430" date_filed="1901-02-20" court="Ill." case_name="Springer v. Ford">189 Ill. 430,) we think it cannot now, in view of the holding of the trial and Appellate Courts, be successfully contended in this court, as a matter of law, that such relation did not exist or that the appellee was wrongfully upon the elevator at the time it fell. This case is not like that of Walsh v. Cullen, 235 Ill. 91" date_filed="1908-06-18" court="Ill." case_name="Walsh v. Cullen">235 Ill. 91. In that case the relation of master and servant existed between the parties, while here the appellee was a passenger, and the duty which the appellant owed the appellee was the duty growing out of the relation of carrier and passenger. This court has held (Hartford Deposit Co. v. Sollitt, 172 Ill. 222" date_filed="1898-04-21" court="Ill." case_name="Hartford Deposit Co. v. Sollitt">172 Ill. 222, and Springer v. Ford, supra,) that a person operating a passenger elevator under the circumstances under which the elevator in question was being operated at the time of the accident is a carrier of persons and bound to exercise a high degree of care in transporting- passengers, and that the fact that the elevator falls when persons are being carried thereon is evidence that the elevator was mismanaged or was out of repair or of faulty construction.
Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting:
The single count in the declaration alleged that the appellant carried on a store, and used and operated in connection therewith a passenger elevator for carrying passengers from floor to floor, and that the appellee was rightfully in said store and a passenger in said elevator. These averments amount to no more than a statement that the appellee was in the elevator for the purpose of being carried and was not a trespasser. The evidence showed that the appellee went to the store for the purpose of obtaining employment. It did not show that he went in response to any advertisement or request of the appellant, that the appellant desired to employ any help, or that the appellee had any reason to suppose it did. In response to his inquiry he was informed that the superintendent was on the ninth floor and was directed to take the elevator to that floor. Finding that the superintendent was not in his office he returned to the elevator, when it fell and he was' injured.
The operators of passenger elevators in buildings for the use of the occupants and those having business with or visiting them are common carriers of passengers, with the same obligations as carriers by other modes of conveyance. (Hartford Deposit Co. v. Sollitt, 172 Ill. 222" date_filed="1898-04-21" court="Ill." case_name="Hartford Deposit Co. v. Sollitt">172 Ill. 222; Springer v. Ford, 189 id. 430; Beidler v. Branshaw, 200 id. 425.) But these obligations do not extend to the case of employees of the operator using the elevator in the course of their employment. (Walsh v. Cullen, 235 Ill. 91" date_filed="1908-06-18" court="Ill." case_name="Walsh v. Cullen">235 Ill. 91.) As to such persons and others using the elevator not in connection with the business of the operator or the occupants of the building or by their invitation, the law does not require that high degree of care which common carriers of passengers must use. One who goes upon the premises of another to seek employment of the owner, not in response to any invitation, is not engaged in the business of the owner. He goes solely for his own benefit. There was no invitation, express or implied, for the appellee to visit the appellant’s store. He went there on his own business and for his own purposes, only. The appellant was under no obligation to the appellee, under such circumstances, to exercise the high degree of care required of a common carrier. Larmon v. Crown Point Iron Co. 101 N.Y. 391" date_filed="1886-02-09" court="NY" case_name="Larmore v. . Crown Point Iron Co.">101 N. Y. 391.
Cartwright, C. J., and Scott, J.: We concur in the foregoing dissenting opinion.