Appeal from the Circuit Court of Cook county; the Hon. LEE W.
CARRIER, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE KILEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 25, 1955.
This is an action under the Wrongful Death Act, Ill. Rev. Stats. 1953, ch. 70, §§ 1 and 2 [Jones Ill. Stats. Ann. 38.01, 38.02], joined with an action for the use of an insurer to recover from defendant the amount of an award made pursuant to the Workmen's Compensation Act, Ill. Rev. Stats. 1953, ch. 48, § 138.5, subd. (b) [Jones Ill. Stats. Ann. 143.68, subd. (b)]. Defendant was charged with negligence which caused decedent's death. The court directed a verdict for defendant at the close of plaintiffs' case and judgment was entered accordingly. Plaintiffs have appealed.
The decedent, Robert Alaimo, worked in a warehouse for plaintiff, Judge & Dolph, Ltd. who leased and occupied the entire building from the defendant, a nonresident owner who has never been inside the building. Alaimo "stored and moved about" merchandise in the three-story structure and in the course of his employment had occasion to use a freight elevator which was installed in the building when it was built in 1914 or 1915.
The elevator was operated by a hand rope cable. At each floor there were iron elevator doors about 10 feet high which were opened by the upper half rising and the lower half moving down. The doors on the second and third floors worked somewhat in unison so that when the upper half of the door on the second floor was raised the lower half of the door on the third floor would rise to close. Thus when the lower half of the third floor door was closed, the upper half of the second floor door was open. When the elevator was at the second floor the third floor doors would not open completely but would open "a foot or a foot and a half."
The elevator was equipped with a threshold plate which could be let into place from the elevator to form a deck over the several inches between the elevator and any floor at which it was stopped. When this plate was down the elevator would not move. When not in use the plate swung up and inside the elevator against a flange in a somewhat upright position.
The elevator was not equipped with an electro-mechanical interlock which is designed to prevent the elevator doors from being opened when the elevator is not at the landing and the elevator from moving unless the doors where it stops are closed. The device had been in standard use in this country for thirty years. There was not on the elevator a "magnetic rope lock" which, with the opening of the elevator doors, operates electrically to seize the rope cable so it cannot be pulled up or down. This had been standard equipment for thirty-five years. The elevator had never been modernized or kept in order since its installation and defendant's agent had not inspected it for fifteen years.
There was no signal device which told the location of the elevator. The only way one could tell where the elevator was, was to put "your head in." The "mechanical catches" to keep the door shut "weren't balanced right" and did not function. There was a rope lock device on the hand rope which controlled the movement of the elevator. The lock did not operate, however, because there "were no lock balls on the control cable." When functioning this device maintained the stop at each landing. It is placed in function by throwing a small lever. The lever was on the rope lock the day of the accident but since the lock balls were missing the device was ineffective.
On December 6, 1951, Alaimo was working on the second floor of the warehouse and with another man was moving a truckload of boxes toward the elevator. At the same time two other men were working on the third floor. One of the men on the third floor looked down the shaft, saw the elevator, called for it and then opened the elevator doors a little and pulled on the hand cable to bring the elevator up. When he had "just" done this, the third floor doors started to close and "almost caught him." A moment later it was discovered that Alaimo had been caught in between the elevator floor and the wall of the shaft. His feet were dangling about 6 feet above the second floor. The second floor door was open. He sustained injuries that resulted in his death. There were no witnesses to the accident and no evidence as to what the decedent was doing immediately prior to the accident. The view of the man working with him was obstructed by the boxes on the truck.
Plaintiffs contend that the defendant negligently failed to repair as required under clause 16 of the lease and is therefore liable for the damages resulting from this breach of the covenant. Defendant maintains that the covenant did not create any duty to keep the elevator in a safe condition and that, therefore, there could be no breach of duty and no liability.
The lease consisted of a printed form with typewritten insertions and a typewritten rider. The instant term was for five years commencing October 1, 1949 and was a renewal of two previous leases for like periods. Clause 16 of the lease provided:
"Repairs 16. During the term of this lease, Lessor agrees to . . . make repairs and replacements to elevator, elevator machinery and elevator shaft, when required because of ordinary wear and tear, and any other repairs required as a result of the fault or neglect of the Lessor."
The precise question before us is whether defendant landlord is liable for injuries suffered as a result of the alleged breach of the covenant to repair and if so whether the evidence tended to show that his failure to perform the obligation was the proximate cause of the death of Robert Alaimo.
A majority of the cases deciding this question have held that there is no liability. For example see, Huey v. Barton, 328 Mich. 584, discussed in 26 Notre Dame Law. 345; Prosser, Torts 658 (1941). However, a growing minority of jurisdictions have allowed recovery in tort for personal injuries resulting from a breach of the covenant to repair. For example see, Scibek v. O'Connell, 131 ...