Blanco v. Marian Realty Co.

RICHARDS, J.

This appeal is from a judgment in the plaintiff’s favor in an action for damages for personal injuries alleged to have been suffered by him while riding upon a certain freight elevator or sidewalk hoist connected with certain premises owned by the defendant Marian Realty Company in the city and county of San Francisco, and within which there has been conducted and operated for the past several years a market bearing the name of “Crystal Palace Public Market,” but which name is only a trade name which the said Marian Realty Company employed in defining the market establishment upon their said premises. Stalls or spaces upon the main floor of said premises are leased or rented to numerous persons for the conduct by each of his particular line of trade thereon, and by the terms of their respective leases each of said persons is entitled to a certain space in the basement of said structure for the keeping of the goods, wares, or supplies which are sold upon the main floor in their, and each of their, respective stalls. In connection with the aforesaid uses of said market the said defendant installed a sidewalk elevator or hoist, to be operated between the basement and the main floor of said market, for the benefit and convenience of these, its several tenants, in transporting their goods and supplies from their place of deposit in the basement to the main floor as needed in their several lines of trade. This elevator or hoist when thus installed was and has ever since been used for freight purposes only and was not a passenger elevator in any sense of the term. It was operated by

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mechanical contrivances with which it was connected by a rope passing through the elevator and by means of which whoever was engaged in bringing goods or supplies from the basement to the main floor started and stopped the said hoist. This operation of the contrivance was conducted by the tenants themselves or their employees in connection with its aforesaid uses, and the only connection which the said defendant had with its actual operation consisted in providing and keeping in condition the machinery by which, through the use of said rope, it was made to rise and descend. The plaintiff herein was and for about two years prior to the accident which caused his injuries had been an employee of a tenant named Van Erp, who conducted a stall upon the main floor of said market, with its corresponding space in the basement, and during the time of his said employment plaintiff had used and operated said elevator or hoist almost daily, and was, therefore, fully acquainted with the construction and condition of said elevator or hoist and with its operation. There was no cage surrounding said appliance, but it was inclosed by the walls of the building upon three sides and had a gate upon the fourth side which opened into the basement of the building and also out upon the sidewalk upon its level with the main floor. The platform of the elevator did not fit this shaft very closely and there was a space of about eight inches between the edge of its platform and the rear wall of its inclosure. It was, however, in other respects the usual type of a sidewalk elevator, for the operation of which the defendant held a license and which was subject to periodical inspection. On the day of plaintiff’s injury he had gone down with another employee of his employer to procure supplies from the basement for use in the latter’s stall upon the main floor, and, having loaded the elevator with such supplies, proceeded to raise the same to the sidewalk level, both occupying the elevator, but the other employee operating the rope by which it was made to rise to its sidewalk level. While thus engaged, and while said hoist was being raised, the plaintiff’s foot in some manner became caught in the space between the platform and the rear wall, from which he received certain serious injuries which form the basis of the present action. The cause was brought to trial before a jury, which returned a .verdict in the plaintiff’s favor for the sum of