Benussi v. Hannah

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiff, as executrix of the last will and testament of Louis Benussi, deceased, who was killed in an elevator accident in an apartment house in the city and county of San Francisco. The action was brought by her against the defendant Plannah, who was alleged to be the owner and in the possession and control of said apartment house at the time of the accident which resulted in her husband’s death.

The elevator in question was an automatic electric elevator for the use and convenience of the tenants of the apartment house, installed at the time of the erection of the building some years before, and in operation at the time of the casualty in which the decedent lost his life. Mr. and Mrs. Benussi were tenants of the building, having their apartment on the third floor". On the evening of May 25, 1915, they left their apartment and proceeded toward the elevator, Mrs. Benussi reaching it- first and touching the button which would start and bring to a stop the elevator at .that floor. It arrived and stopped, when Mrs. Benussi opened the door and entered the elevator. Her husband followed, and was in the act of entering the open door when the elevator started downward, and Mr. Benussi was caught and crushed to death between the top of the door and the third floor, being partly in and partly out of the" descending elevator.

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The plaintiff, in the complaint, alleges that the accident-occurred through the carelessness and negligence of the defendant in failing to have said elevator properly maintained and inspected. The answer of the defendant consists in denials based upon the alleged ‘fact that the defendant was not the owner or in possession or control of said building at the time of said accident. The case came on for trial before a ■ jury, which, upon its submission, rendered a verdict in favor of the plaintiff for the sum' of ten thousand eight hundred dollars, for which sum judgment was accordingly entered, from which judgment, after the denial of a motion for a new trial, this appeal has been taken.

The first contention on the part of the appellant is that the overwhelming weight of the evidence in the case shows that the defendant was not in the possession or control of the building in question or of the elevator therein at the time of the occurrence of the accident which caused the death of the deceased, but that a certain Miss A. S. Morrison, as receiver appointed by the superior court of the city and county of San Francisco in a certain foreclosure suit then pending, was the person solely in possession and control of said building and of said elevator at the time of the accident. Much evidence was introduced at the trial upon this issue of which the following is, we think, a fair summary: