Hollander v. Wilson Estate Co.

THE COURT.

Action for personal injuries. Verdict and judgment for $26,500 for plaintiff. Defendant has appealed.

Defendant is an estate corporation and owns the Wilson Building, a seven-story structure situated at 973 Market Street, San Francisco. It is equipped with one passenger and one freight elevator. On the twenty-third day of April,

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1927, plaintiff was a tenant of practically all the fourth floor of said building, using it to carry on a wholesale and retail furniture, rug and carpet business. The building at said time had some fourteen tenants, all of whom used the passenger elevator as a means of ingress to and egress from it.

On said day respondent and one Scott took passage on said passenger elevator in said building and were being transported from the fourth floor thereof to the street entrance when, without warning or chance to escape, the elevator dropped to the basement. Respondent was severely and permanently injured to an extent which need not be here described; the other passenger and the operator were likewise hurt.

This suit was instituted and in general terms plaintiff alleged negligence on the part of defendant in the maintenance and operation of said elevator. However, the evidence at the trial tended to show that the drop was due to the fact that the hoisting cable had slipped off the sheave, due to a break in the shaft upon which the sheave revolved. The drop should have been arrested by a safety device and it appears that this apparatus was in an unsafe condition and that defendant was negligent in not maintaining said device in proper condition.

The question of first importance upon this appeal is the propriety of the court’s action in striking from the answer of defendant certain provisions of the lease between plaintiff and defendant which defendant set up as a defense to the action. The premises demised were “that certain fourth floor, with the exception of one office known as Room 400, of the building known as the Wilson Building. . . . ” The parties covenanted in said lease that the lessors should not be liable for damages “for personal injuries or damages to any person or persons whatever, arising from or occasioned by any cause, matter or thing whatsoever; and said Lessee hereby covenants and agrees to hold said Lessor free and harmless of and from any and all damages or claims or liability for damages of every kind whatever, either to person or property and howsoever caused, arising during the term of this lease ... in or about or connected with this tenancy or the occupancy of said demised premises”.