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Cobb v. Marshall Field & Co.

JUNE 15, 1959.

ROBERT COBB ET AL., PLAINTIFFS-APPELLANTS,

v.

MARSHALL FIELD & COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook county; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Judgment affirmed. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

This was an action for the personal injuries sustained by the plaintiffs as passengers in the freight elevator of the defendant. The verdict was for the defendant and the plaintiffs appeal from the order denying their motion for a new trial.

The case was tried under the doctrine of res ipsa loquitur and the principal issues arise from the application of that rule and the claim that the verdict was against the manifest weight of the evidence.

All the passengers were employees of an independent contractor, J.B. Noelle Company, and were engaged in painting the interior of the defendant's Chicago store. Many of them had worked at Field's for several years and had ridden on this elevator hundreds of times. About 6 p.m., Saturday, February 12, 1955, the painters gathered on the 13th floor of the main store where the Noelle firm had a locker room and kept much of its equipment. After changing clothes the men entered the elevator identified as No. 2; they were to go to the basement and then cross through a subway to the Men's Store, where their work was to be done.

Their foreman, George Pasaka, who had operated this elevator many times before, did so this night. He testified he had authority from his employer, Noelle, to use the elevator after store hours. He tested the brake near the 12th floor and stopped or slowed the car. Between the 10th and the 7th floors he tested the brake again, but this time the car did not stop. As it kept falling he yelled, "I have no brakes. This is it!"

The six occupants of the car who testified generally fixed the 10th floor as the start of the fall. It was 164 feet from the 10th floor and 120 feet from the 7th floor to the basement. The duration of the fall was estimated from 2 to 6 seconds. One plaintiff said he felt he was in space and that the car bounced when it struck. Another said the car fell from under him and crashed at 50 miles an hour. Two of the three witnesses testified the elevator went 3 or 4 times faster than ever before; but one of these, in a deposition, had said it took 25 to 30 seconds to go from the 9th to the 1st floor.

Two steel bumper plates underneath the car were bent. At the bottom of the basement there was a one-fourth inch steel cover over a deep pit. This cover was supported by steel channels and on it were buffer springs. The pit cover, one or two channels and two springs were damaged. The channels and springs were replaced. The back door of the car and two tracks for this door, which extended beneath the car, were also bent. The repair bill was $588.00.

The defendant employed 25 men to maintain its elevators. Elevator No. 2 was inspected each day. Brake tests were made periodically and the brakes were taken apart twice a year. An inspection also was made after the accident. No repairs were needed or made to the brakes, brake bands, safety device, cables, motor or speed governor. Tests were made with loads up to 1,665 pounds above capacity. The elevator worked and braked perfectly.

An examination had also been made a few days before the accident by two inspectors of the City of Chicago. It was their task to inspect each elevator every six months and the previous inspection was in August, 1954. In the first week of February, 1955, they had examined every part of the machinery, motor and brakes. They rode on top of the car as it descended and looked over the cables, rails and the parts of the car fitting into the rails. They approved it as a safe-operating elevator. After the accident the same City inspectors made another examination. They found nothing wrong and again approved the elevator.

A certificate of inspection is issued by the City which bears the weight capacity of the elevator as set by the manufacturer. The certificate last issued was posted in elevator No. 2. Only one plaintiff was asked about this and he acknowledged that he had seen it. The plaintiffs object to this certificate having been received in evidence. It was the owner's notice to the public, as well as the City's certification, that the elevator complied with the municipality's standards; it was also notice that there was a limit to the weight which could be safely carried; it was in the elevator at the time of the accident; there had been considerable preliminary testimony about it and a proper foundation had been laid. We think it was admissible. Krueger v. Friel, 330 Ill. App. 557.

The floor area of the elevator was a little under 8 feet by 8 feet. Twenty-one men and three hand trucks, each about 3 to 4 feet long and 2 to 2 1/2 feet wide, occupied this space. The trucks were loaded with painting equipment including various sized drums and cans of paint, plaster and calcimine. The trucks and the equipment were weighed after the fall and came to 2,110 pounds. The weight of the 21 men was estimated to be from 150 to over 200 pounds each. The total weight on the elevator was more than 5,600 pounds. The posted capacity was 3,500 pounds.

Elevator No. 2 had three braking systems. Only one was controlled by the operator; this had dual action, electrical and mechanical. When the control lever was pulled to the braking position, the electric current would be disconnected, and the motor at the top of the shaft would act as a dynamic brake; at the same time brake drums, working similarly to automobile brakes, would bring the wheels, turned by the motor, to a stop. A cable ran over these grooved wheels and was attached to the car; this cable raised and lowered the car. The second system worked identically as the first except, instead of the operator turning off the power, this was done by safety switches located near the bottom and top of the shaft. The purpose of this system was to prevent the elevator from going too low or too high in the event the operator became incapacitated. The third system was an automatic device underneath the car. It consisted of clamps which could be forced by springs to grasp the two rails upon which the car ran. This emergency device was designed to stop the elevator if it attained too great a speed. The normal speed was regulated by the motor and was 350 feet per minute. This automatic brake was controlled by a governor and was set to work if a speed of 420 feet per minute was reached.

Because this automatic brake was in good condition both before and after the accident, and because it did not go into use as the car fell, it was the conclusion of the witnesses for the defendant that the car had never gone as fast as 420 feet per minute. These witnesses, experienced elevator men, estimated the speed to be from 100 feet to 250 feet per minute, or from 1 to 3 miles per hour. The estimates were based upon the elevator's braking systems, the weight in the car and the damage done to the bottom of the car and the cover of the pit.

The defendant's theory of the accident was that the first brake, controlled by the operator, worked properly and shut off the motor and stopped the wheels, but that the weight in the car was so great that the cable attached to it kept slipping around the stopped wheels, and, although the fall was retarded by the braking action, it could not be entirely restrained; that the safety switch, at the lower end of the shaft was tripped as the car passed it, but this had no effect because the motor was already stopped, and that the third brake never went into operation because the car did not go fast enough to cause it to do so.

At the conclusion of all the evidence the court stated that it would favorably consider a motion for a directed verdict for the defendant unless the complaint, which alleged general negligence of the defendant in permitting the elevator to drop out of control, was amended to charge specific acts of negligence. In compliance with the court's admonition the defendant was then charged with improper inspections, inadequate safety devices, careless maintenance and inspection of the safety devices, failure to provide adequate notice of the ...


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