JAMES H. GOGGIN, Respondent, v. D. M. OSBORNE & CO., Appellants, 115 Cal. 437

Britt, C. Plaintiff had a verdict and judgment in this action for damages on account of personal injuries suffered by him while in the employ of defendant, a corporation, which injuries he alleged to be the consequence of defendant’s negligence. The immediate occasion of such injuries was the fall of a platform freight elevator of hoist used by defendant for transporting goods between the several floors of its warehouse, plaintiff being precipitated with the same from the third story to the basement of the building.

It is insisted for reversal that plaintiff is clearly shown by the evidence to have been guilty of contributory negligence; that he knew the elevator to be dangerous to passengers, and that a rule of the establishment forbade employees to use it except for the carriage of freight; that, having such knowledge, he should have descended by a stairway, but was in fact using the elevator for his greater convenience in that particular when the accident occurred.

Negligence of plaintiff was not pleaded in the answer, and he contends that it is therefore unavailable as a defense; we do not find it necessary to consider the question of pleading.

There was evidence that the elevator was often out of order, and that for two days next preceding the accident by which plaintiff was injured it had been undergoing repairs; that when these were completed, defendant’s local manager—the same person who had promulgated the rule above mentioned—told plaintiff that the elevator was “fixed,” and directed him to load certain machinery on the same at the third or uppermost floor of the building, and descend to a “deck” between floors, and take thence other freight; that the common—and plaintiff testified the only—way of reaching the deck was by means of the elevator when this was in use; that ■in adjusting the load it was usual and necessary for employees to go upon the elevator; that plaintiff did so on this occasion, and, while he was thus on the same in obedience to said directions of the manager, the sustaining ropes broke and it fell.

One Beghul, who witnessed the accident, testified that the elevator broke down while the loading was in process; the testimony of plaintiff himself in this regard (if the point be material) is not entirely clear; but, though it is apparent that he intended to descend on the elevator, there is nothing in his testimony or in his complaint inconsistent with said statement of Beghul. There was also evidence that any regulation against using the hoist to ride on was frequently disregarded by the defendant’s servants of all grades of employment—from the said manager down.

Granting now the contention of appellant that the evidence shows, without material conflict, that the hoist, to the knowledge of plaintiff, had been dangerous for use as a passenger elevator, and he had received warning against making such use of it, yet, in view of the statement of the manager after the last repairs, that it had been “fixed,” his orders to plaintiff relative to moving the freight, the fact that to use the elevator at all plaintiff must get on the same, and the other matters which we have briefly stated, it seems to us very clear that it became a question for the jury whether plaintiff knew that the apparatus was dangerous at the time, and for the purpose in which he was employing it, when it broke," and so assumed the risks consequent upon such use; and, what is much the same proposition, it cannot be said, as matter of law, that a person of ordinary prudence would have refused to use the elevator in the manner plaintiff did. (Fernandes v.

Sacramento etc. Ry. Co., 52 Cal. 45; Whalen v. Arcata etc. R. R. Co., 92 Cal. 669; Van Praag v. Gale, 107 Cal. 438; Davis v. Pacific Power Co., 107 Cal. 575; 48 Am. St. Rep. 156.) The further point is made that defendant was not negligent, because, counsel say, immediately before the accident it caused all repairs to be made on the elevator which were deemed necessary by an expert. This view does not seem wholly consistent with the argument that the elevator was dangerous and known on all hands to be so.

But the inquiry in this behalf was, whether defendant had used reasonable care to make the elevator safe for the purposes in which plaintiff was required to employ it; and here, also, was a case made for the consideration of the jury. It was in evidence that the hoist was of a class of “rather poor elevators,” and that there were defects in the same known to the manager which may have contributed to the accident, and which were not repaired at all. The expert himself testified that' the elevator, as repaired by him, was unsafe for passengers, and that he so informed the manager.

We recommend that the judgment and order appealed from be affirmed. Haynes, C., and Searls, C., concurred. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. Henshaw, J., McFarland, J., Temple, J. Hearing in Bank denied.