Rogers v. Ponet
Before: James
Synopsis
Master ane Servant—Existence of Relation—Injury to Employee by Falling or Elevator.—In this action for personal injuries sustained by the plaintiff; through the falling of a passenger elevator in an apartment house, the evidence shows that the plaintiff was an employee, rather than a partner of the defendant in the management of the house, and hence that the defendant owed the plaintiff the duty to furnish a safe place and safe appliances.
Id.—Joinder of Dependants in Action Ex Delicto.—The rule that in an action of tort all persons concerned in the commission of the wrong may be joined, or any of them may be sued severally, applies to acts of copartners performed in the transaction of the business of the partnership, and applies as well where the relation of master and servant exists.
Id.—Misconduct of Counsel in Argument—When not Prejudioal.— Alleged misconduct of counsel for the respondent in referring, during his argument, to the absence of certain witnesses who, it was assumed, might have testified to the condition of the elevator immediately prior to the accident, will not be considered prejudicial to the appellant, if, for lack of assignment of error in that regard, the evidence will be deemed sufficient to support the charge of negligence against the defendant.
Id.—Appeal—Questions not Argued in Briefs.—Questions as to the admission or rejection of evidence, if not argued in the briefs, call for no attention on appeal.
Id.—Safe Place and Appliances—Continuous Duty to Furnish.—An employer owes a continuous duty to exercise ordinary care to furnish his employees a reasonably safe place to work and reasonably safe appliances.
Id.-—Inspection of Appliances—Duty to Make.—An employer owes the duty to exercise reasonable care to inspect appliances furnished for the use of employees.
Id.-—Notice of Condition of Elevator—Instructions.—Instructions requested by the defendant as to plaintiff’s knowledge of the condition of the elevator, are properly refused when their substance is fairly stated in other instructions given by the court.
Id.—Assumption of Bisk by Employee—Instructions.—An employee assumes all the ordinary risks of his employment, and if he willfully encounters dangers that are known to him, or are notorious, the master is not responsible. But the refusal of the court to give an instruction in such terms is not reversible error, if the court had already given to the jury the substance of the code provisions which declare when an employee may recover, notwithstanding Ms knowledge of defective or unsafe conditions of machinery, structures, appliances, etc.
Id.—Defective Elevator—idealization of Bisk.—Where an employee is injured by the falling of an elevator in an apartment house, and the testimony shows that he knew that the- elevator did not work well and that the cable was worn, but that he was not in- ' formed that it was unsafe, it becomes a question of fact to be settled by the jury as to whether or not he comprehended and realized the risk he was running in making use of the elevator.
JAMES, J.
Plaintiff brought this action to recover-damages for personal injuries alleged to have been sustained by her through the falling of a passenger elevator in an apartment house. At the time of the accident plaintiff was employed in the apartment house as assistant manager and clerk, and was engaged in the performance of her duties as such when she sustained the injuries complained of. The owners of the building were joined as parties defendant, but a finding was made in their favor at the trial, and judgment was rendered against appellant Irwin, who was the lessee and in the active control and management of the apartment house. This appeal is taken from that judgment and from an order denying appellant’s motion for a new trial.
Issue was raised as to the plaintiff occupying the relation of servant toward defendant Irwin, it being denied by the allegations of the answer that plaintiff at any time or at all was or had been defendant Irwin’s employee, and in the answer it was then affirmatively alleged that the plaintiff was a copartner of said defendant in the management and control of the apartment house. It is contended by appellant that the evidence showed that she was not the employer of the plaintiff, and therefore she did not owe her the duty to provide a safe place in which, or appliances with which, to perform her work. It was shown in evidence that at the time plaintiff took up her work at the apartment house she did so under the terms of an agreement entered into between defendant Irwin and one Archer. This agreement provided that, in consideration of the payment to defendant Irwin of one thousand five hundred dollars, she, Irwin, sold and transferred to Archer an undivided one-twelfth interest in and to her equity in the furniture, furnishings, lease, and goodwill of the apartment house. The agreement then recited that, as a part of the consideration thereof, Archer or any person whom he might appoint or designate to serve in his place and stead, should be
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employed as assistant manager and clerk of the house at a monthly salary of sixty dollars, and in addition thereto be accorded the use and possession of an apartment for living purposes. The agreement contained a further condition that all existing debts, current and running expenses of the house should be borne by the defendant Irwin, and that Archer should in no wise be responsible for the same. Other conditions were recited therein covering the contingency of a sale of the house and business, which gave to defendant Irwin the right to sell the entire business upon making a certain designated settlement with Archer. From the evidence it would appear that defendant Irwin, desiring to secure the one thousand five hundred dollars for use in her business, agreed to furnish employment to the investor, or a person to be designated by him, and in addition to pay one-twelfth of the net profits of the business in return for the use of the money. The whole trend of the evidence tends toward sustaining this conclusion, and if such was the intention of the parties the result would not have been to establish a copartnership. In many of its essential features the contract between appellant and Archer was not unlike that considered in the case of
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