90 Wis. 497 | Wis. | 1895
1. By the contract between the elevator company and the Reliance Wire & Iron Works, the elevator was to be held and operated by the latter upon trial, and not to be accepted and paid for until in complete running order;
We think the case is clearly distinguishable from Crane Elevator Co. v. Lippert, 11 C. C. A. 521, 63 Fed. Rep. 942; Bennett v. Railroad Co. 102 U. S. 577; Bright v. Barnett & Record Co. 88 Wis. 299, and other cases cited by the appellant. There was no privity or contract relation between the plaintiff and defendant, and there was no allurement or implied invitation on the part of the latter to cause the plaintiff to approach, or be near the foot of the elevator shaft, or even in the building.
If this action could be maintained upon the allegations of negligent and improper construction of the elevator, it would follow that any one actually using it, and receiving injury in consequence, — a much stronger case than the present,— might maintain an action against the manufacturer. This would be to introduce a rule which, we think, is not sustained by authority, and might lead to serious consequences. The case falls, we think, within the rules acted on in Winterbottom v. Wright, 10 Mees. & W. 109; Collis v. Selden, L. R. 3 C. P. 498; and Heaven v. Pender, 11 Q. B. Div. 514. In Collis v. Selden the defendant had negligently and improperly hung a chandelier in a public house, knowing that the plaintiff and others were likely to be therein and under the chandelier, and, unless properly hung, it was likely to fall upon and injure them; and, the plaintiff being lawfully in the public house, the chandelier fell upon and injured him; and it was held that the declaration was bad, in that it did not disclose any duty by the defendant towards the plaintiff for the breach of which an action could be maintained. This case was referred to in Elliott v. Hall, 15 Q. B. Div. 320, and it was said by Gmove, J., that “ the case was really decided on the ground of uncertainty of the declaration as
2. It was contended that the defendant was liable as for a breach of duty imposed upon it at common law to avoid acts the natural and probable consequences of which would be imminently dangerous to the lives or persons of others. Elevators such as this are in such universal use that we cannot say that one placed in position and in use is per se a machine, device, or appliance imminently dangerous to the lives of others, or that serious injury to any person using, operating, or approaching or being near one would be a
For these reasons, we think that the demurrer was properly sustained.
By the Gourt.— The order of the superior court is affirmed.