Jacobi v. Builders' Realty Co.

HENSHAW, J.

Plaintiffs, as heirs at law of Annie Jacobson, deceased, brought their action to recover damages for her death, alleged to have been occasioned through the defendant’s negligence. Trial was had before a jury, which returned its verdict for the defendant. Plaintiffs moved for a new trial, which motion the court granted. This appeal is taken from the order so doing.

Appellant urges two propositions: The first, that the court. erred in granting the motion because the evidence conclusively shows that defendant was not negligent; second, that the court erred because the evidence conclusively establishes that the deceased met her death through her own negligence; that the negligence of the deceased was either the sole negligence established in the ease, or at the least was contributory negligence, barring the right of recovery.

The unquestioned facts are that the defendant owned and maintained an apartment house in the city and county of San Francisco. The deceased frequently visited friends residing in this apartment house. For the use of the tenants, their visitors and guests, the defendant maintained an elevator in this house of a type known as a “full automatic elevator.” This elevator was without attendant and was operated exclusively by the passengers. One desiring to use the elevator stood in front of a closed door opening on the elevator shaft and pressed a button in the door casing. This pressure made an electrical connection, causing the elevator cage to ascend or descend and stop at the given floor. Its presence there unlocked the door, which the intending passenger then opened and stepped into the cage; closing the door behind him he pressed a button corresponding to the floor to which he desired to go, and through a second electrical connection thus made the cage moved to the indicated floor. As it started on its journey the door of the floor from which it was departing again was automatically locked. The door at any floor could not be opened unless the cage was present at that floor, nor, upon the other hand, would the cage when at a floor move unless the door fronting it was closed. Such in theory was

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the operation of this elevator, and in theory, therefore, it was an extremely safe appliance. In practice, however, it failed to measure, up to this. In point of operation it not infrequently happened that the cage would move when a door was opened or on the jar. The evidence in the case went to show that at least a part of this trouble was due to an inherent structural defect in the appliance; that another part of the trouble resulted from the fact that the elevator frequently got out of order and repair, it being in evidence that this occurred as often as once or twice a week.