Wilson v. Zemen

MUSSELL, J. This is an action for damages for personal injuries sustained by plaintiff on March 16, 1952, when an elevator in which she was riding as a passenger fell to the basement of the William Penn Hotel in San Diego. Defendants Sam Zemen, Max Zemen and Sophie Zemen, copartners, operated the hotel as lessees. Defendant William H. Dunn, individually and doing business as Pacific Elevator Company, serviced and inspected the elevator in said hotel from October, 1949, to and including the date of the accident. Otis Elevator Company installed new hoisting cables in the elevator and shackled or socketed them to the cab in October, 1946, and made periodic inspections, minor repairs and adjustments to the elevator until October, 1949, when its contract was terminated.

The trial court, after trial without a jury, entered judgment in favor of plaintiff and against the defendants Zemen, William Penn Hotel and the Otis Elevator Company for the sum of $17,500, and costs, and in favor of William H. Dunn, doing business as Pacific Elevator Company, and against plaintiff for costs. Defendant Otis Elevator Company appeals from the judgment. The defendants Zemen filed a notice of appeal herein on May 4, 1954. However, they have filed no brief herein and their appeal is therefore dismissed. (Rule 17(a), Rules on Appeal.)

At the time of the accident the elevator was operated by an employee of defendants Zemen and plaintiff was being taken from the lobby to the first floor, when the hoisting cables attached to the elevator cab failed and the elevator fell to the bottom of the shaft, seriously injuring the plaintiff. The extent of her injuries and the amount of the judgment are not in dispute. The principal question for our determination is whether there is substantial evidence to support the trial court’s finding that: “In October, 1946, when Otis Elevator Company installed the cables and shackled or socketed them [384]to the cab of the elevator, the work done by said Otis Elevator Company was defectively and negligently done and was not in accord with sound engineering practices and principles; and that said negligence on the part of Otis Elevator Company was a proximate cause of the fall of the elevator and the resulting injury to plaintiff.”

The elevator was suspended from two hoisting cables which were shackled to the crosshead of the elevator. These shackles are applied by inserting the ends of the wire cables in bronzed thumbs or thimbles, separating the strands of the cables and turning them back in toward the cables and filling the thimbles with babbitt. In December, 1946, defendant Otis Elevator Company had installed new hoisting cables for the elevator involved and had shackled them to the cab. After the installation of these new cables in 1946 no new shackles were applied and it is these shackles which failed at the time of the accident. There is a sharp conflict in the testimony as to whether the work of shackling in 1946 was done in a workmanlike manner or was negligently done. However, where as here, the finding of the trial court in that connection is supported by substantial evidence, it will not be disturbed on appeal. (Berniker v. Berniker, 30 Cal.2d 439, 444 [182 P.2d 557].)