Kiernan v. Herbert M. Baruch Corp.

California Court of Appeal Apr 9, 1937 No. Civ. 10112Published

Before: Tyler

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Holding. The court held that the doctrine of res ipsa loquitur was properly applied where the cause of an elevator accident was in doubt, and that the determination of whether the hoist operator was an agent of the general contractor or the subcontractor was a question of fact for the jury.

Issues

Whether the doctrine of res ipsa loquitur was properly applied to an elevator accident where the cause was in doubt.
Whether the hoist operator was an agent of the general contractor or the subcontractor.
Whether the failure to return a verdict against the unserved operator precludes a judgment against the employer.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Where, as here, the evidence of negligence is disputed, and leaves a doubt as to the cause, the doctrine is properly applied.”

“The question of whether Reid was the agent of the corporation or of Back under the circumstances was one for the jury.”

“The fact that Reid had followed Back’s instructions to go slow did not make Reid the servant of Back.”

TYLER, P. J.

Action for personal injuries. The case was tried before a jury which rendered a verdict for plaintiff in the sum of $3,000 against one of the defendants, Herbert M. Baruch Corporation, alone. The Baruch company was the general contractor in the construction of the Fort Miley hospital. Affixed to the exterior building during its construction was a hoist shaft in which elevators were operated for the purpose of hauling material to the upper floors. M. J. Reid, the co-defendant, was a master mechanic, having general charge of the men operating mechanical equipment for the company, and was upon its payroll. He also operated the hoist on occasions and was so operating it at the time of the accident in question. Plaintiff was a helper in the setting of marble. He was an employee of one J. E. Back who had a subcontract for the marble to be installed in the building. At the time

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of the accident in question plaintiff rode upon one of the elevators, holding a piece of marble in position, while the elevator ascended the shaft. When the elevator reached the fourth floor, which was its destination, it dropped a distance of approximately one floor and the plaintiff was struck upon the jaw by the slab of marble which was being carried in the elevator and received the injuries complained of. The complaint charged negligence in general terms in the operation of the elevator by Reid. The answer raised the issue as to the status of Reid as a servant of the defendant corporation at the time of the accident and further denied any negligence upon his part.

There were two versions of the cause of the accident. One version, presented by testimony offered by the plaintiff, was that a safety lock, known as a dog, designed to hold the elevator at the place of destination did not fit into a notch, known as a cog, on this particular occasion, and that the elevator dropped until Reid could stop it with his brake. The version offered by the defense was that Reid was slipping the clutch in order to move the elevator slowly; that he felt a jerk indicating to him that the marble had caught on the timber of the shaft, and that the elevator had dropped before it could be stopped with the brake. It is appellant’s contention that under either theory there is no basis for the conclusion that there was negligence upon the part of the operator. It is true that there was no direct evidence to show just what caused the accident except that it happened in one of the two ways mentioned. The apparatus may have failed or the operator may have been negligent in handling the apparatus. Suffice it to say that the evidence leaves the exact cause in doubt. Under these circumstances the court applied the doctrine of

Kiernan v. Herbert M. Baruch Corp.

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TYLER, P. J.

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