Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
In the words of plaintiff's counsel, this action was brought to recover damages for personal injuries occasioned by alleged negligence of defendant in inviting plaintiff to use an elevator in defendant's building which defendant knew to be unsafe. At the close of plaintiff's evidence, the district court directed a verdict finding the defendant not guilty, and entered judgment thereon, from which plaintiff has appealed to us.
Considered in the light most favorable to plaintiff, there was evidence tending to prove the pertinent facts which we now set forth.
Defendant, a resident of Quincy, Illinois, on and for several years prior to May 1, 1951 owned a building in Oskaloosa, Iowa. It faced south. On its west side was an alley. On the second floor were certain apartments. In the northwest corner of the first floor was a room which opened on the alley. Above that room was a second floor area which by means of two small windows opened onto the roof.
The elevator in question (which is also referred to as a hoist) ran from the first floor room to the second floor area and was raised by means of a chain hoist suspended from above. The hoist was powered by a motor and was controlled by two hemp ropes which hung down to the first floor. The cage had a floor about 8 feet square, and sides, a back and a roof of wooden boards. It had an open front without gates or doors. A post, 8 by 8 inches, on each side acted as a guide on which the cage slid up and down. There was no shaft or enclosure around the cage, guides or hoist. When not in use, the cage rested upon the concrete floor of the room, there being no pit beneath it. The chain hoist was hooked from the top of the cage to a cupola in the second floor area about 30 feet from the ground floor.
This hoist was installed in 1946 by defendant and his then partner Russell Good, who were operating a chicken hatchery in the building. They used it for carrying chicken crates and other articles. Thereafter an elevator inspector examined the hoist and told Good that the elevator should not be used for passengers, and also that safety stops, lock stops or other similar safety devices should be installed. This information was relayed to defendant by Good. The lock stops or other safety devices were not installed because of the expense. Later another inspector looked at the hoist. He merely stated that it should be used only for freight.
In August 1949 defendant made a written lease of the entire building to the local Moose lodge for a period of five years. This lease did not give the defendant any right to enter the premises for any purposes and did not obligate defendant to make repairs. Plaintiff at all times material to this case was a member and trustee of the lodge, as well as custodian and janitor for the building. He became a subtenant of the lodge for basement space in the building, where he conducted a mattress business.
About the time that defendant was moving out of the building to make way for the lodge tenant, plaintiff was on the premises performing his duties for the lodge. When defendant was removing his hatchery equipment, the hoist and chain previously attached to the elevator were removed and placed on the floor. A few days later, at plaintiff's request, Gus Abbott and his two helpers, with plaintiff's assistance, put the hoist and chain back in operating position. Until then it had lain on the floor and was completely out of operation. This reinstallation took place after the Moose had taken possession of the building and plaintiff had become a subtenant of the Moose.
About two months later defendant called at the clubhouse and watched the members of the lodge doing painting and other work in the clubroom. Defendant said to plaintiff that he understood that he was going to do the janitor work and look after things for the lodge, and he asked plaintiff if he would look after the roofs of the building because defendant lived in Quincy. Plaintiff agreed to do so and defendant said that he would "make it right with me and pay me for my trouble." Defendant never thereafter paid plaintiff anything and plaintiff never asked for any payment. After this conversation plaintiff and defendant were in the room where the elevator was and defendant told plaintiff how to operate it by pulling the ropes. Defendant took plaintiff to the second floor on the elevator and they looked at that part of the building. Defendant said he did not think that rain coming through an opening in the wall on the second floor would amount to anything, because there was a cement floor there and the water would run over to the drain in the middle of the floor if any came in. He then ran the elevator down to the first floor with both men on it.
At one time plaintiff, on behalf of the Moose lodge, showed the second floor to one Jackson for the purpose of renting it to him for dead storage.
Access to the roof of the building was available through a hallway serving the apartments on the second floor which had a door leading out to the roof, as well as by a ladder reaching from the ground to the roof on the west side of the building.
Until May 1, 1951, plaintiff continued his mattress work in the building and also reported to defendant from time to time as to needed building repairs, which were made following correspondence and telephone conversations with defendant, and during this time plaintiff used the elevator three or four times without incident. During that period the elevator received no maintenance care or repair.
On May 1, 1951, plaintiff had gone up on the building roof to inspect it for hail-storm damage and noticed that the two windows opening out from the second-story area to which the elevator ran, had become unfastened and swung outward. He pushed them shut but they would not stay, as they fastened only from the inside. Plaintiff then went down the aforesaid ladder, into the building, up in the elevator to the upper room and fastened the windows. In returning down, the elevator descended about four feet, stopped, and then suddenly fell to the cement floor of the room below. Upon regaining consciousness, plaintiff was sitting in the elevator cage with fallen boards from the cage ...