Thomas v. German Gen. Benevolent Soc'y

HENSHAW, J.

This action is an action for damages growing out of personal injuries suffered by plaintiff while he was in defendant’s employ. The verdict of the jury was for plaintiff, and from the judgment which followed defendant appeals.

Plaintiff was the

chef

or head cook of the large hospital maintained by defendant. He had charge of the kitchen service. Under him were subordinate cooks and other assistants—a butcher,' a vegetable man, a confectioner, a store keeper, porters and dishwashers. The kitchen was located upon the fifth floor of the hospital building, and from this floor an elevator ran to the basement, in which the storeroom was located. It was an electric elevator, and was operated by pulling a rope which ran perpendicularly through the ele

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vator cage. It was so constructed that it would stop automatically upon the fifth floor and at the basement. It did not so stop automatically at the intermediate floors. This elevator was designed for the carrying of freight, consisting of kitchen supplies, which were thus transported from the storeroom in the basement to the kitchen upon the fifth floor. In the elevator was posted a conspicuous sign bearing the words, “For freight only. No passengers allowed.” Nevertheless it was the known practice of the kitchen staff and other employees themselves to use this elevator. Plaintiff had himself frequently used it in transporting himself from the kitchen to the basement to take an inventory of the storeroom supplies, and to order the transportation of meats, vegetables, and the like to his kitchen.

Upon the day of the accident the directors of the defendant society were dining at the hospital. A waiter reported to the

chef

that cheese was desired for their dinner. There was no cheese in the kitchen; and the

chef

himself entered the elevator and lowered himself to the basement floor, there to procure the desired article. This elevator was not equipped with automatic closing gates in front of the shaft, but was equipped with well constructed doors closed by hand. It was the practice and duty of the employees when they moved this elevator to ring the bell connected therewith, and to close the gate. Plaintiff, on leaving this elevator in the basement, so closed the gate. He found the basement dark, and called to the store-keeper, telling him what he wanted. The store-keeper turned on a light in the compartment of his storeroom containing the cheeses; and plaintiff took upon his right arm such of the cheeses as he desired and started to return to the elevator. During the time of his absence the confectioner, a fellow-employee and under the control of the plaintiff, opened the gate, entered the elevator and ascended to an upper, floor without either ringing the bell or closing the gate behind him. Plaintiff moved along the darkened passageway with the cheeses on his right arm, and his left arm extended, believing that the elevator gate was closed as he had left it, and that his extended hand would encounter it. The gate being open, he stepped into the elevator shaft, and received the injuries complained of.