Simons v. Gregory

Opinion by

Chief Justice Hobson

Affirming.

Appellant was painfully injured by the fall of an elevator in the courthouse at Louisville while she was in the elevator as a passenger, and being carried from the fifth floor to' the first. She instituted this action against the fiscal court of Jefferson county, Jefferson county, the Geiger, Fiske & Koop Co., the Fidelity & Casualty Company, the jailer of Jefferson county, and the county judge and justices personally. She alleged that the fiscal court had the elevator in *121 stalled in the courthouse voluntarily, and without any legal duty on their part to do so; that they failed to have it constructed safely, and by gross negligence permitted it to he operated when out of order and controlled by inexperienced persons; that the Geiger, Fiske & Koop Company put in the elevator under contract with the fiscal court, and, by gross negligence, failed to make it safe; that the dangerous condition of the elevator was well known to the company, or could have been known to it by the exercise of ordinary care upon its part, but was unknown to her; that the Fidelity & Casualty Company of New York had entered into a certain contract with the fiscal court of Jefferson county, which was in force at' the time she was injured, by which it bound itself to the fiscal court to indemnify it and the county of Jefferson against any loss which it might sustain by reason of any accident or injury which might be sustained by any person on account of the elevator.. The court sustained a demurrer to the petition. Thereupon the plaintiff amended her petition, reiterating her charges of gross negligence, alleging that for some time before she whs hurt the elevator was in a dangerous condition, and that the members of the fiscal court and the jailer knew this, or by the exercise of ordinary care could have known it; that the fiscal court received the elevator, by gross negligence, from the Geiger, Fiske & Koop Company when it was in a dangerous condition; that the fiscal- court was without authority to put an elevator in the courthouse, and that for some time before her injury the elevator, in its dangerous condition, was perilous to all persons having occasion to use it, and that this was- known to the defendants, or could, by the exercise of ordinary care, have been known to them; that the operator of the elevator was grossly negligent and careless in its operation; and that the officers of Jefferson county *122 referred to, knew that he was an unfit person to have charge of it. The court sustained a demurrer to the petition as amended, and the plaintiff appeals.

1. As to Jefferson county, the fiscal court, the county judge, justices of the peace, and jailer, the ruling of the circuit court followed a long line of decisions of this court; the rule being in this State that neither the county, the fiscal court, nor county officers are liable to a person injured from defects in the county highways, bridges or other structures which the county is by law required to maintain. (Wheatly v. Mercer County, 72 Ky., 704; Moberly v. Carter County, 5 Ky. Law Rep., 694; Hite v. Whitley County Court, 91 Ky., 168; 12 Ky. Law Rep., 764, 15 S. W.,57, 11 L. R. A., 122; Sheppard v. Pulaski County, 18 S. W., 15, 13 Ky. Law Rep., 672; Downing v. Mason County, 87 Ky., 208, 10 Ky. Law Rep., 105, 8 S. W., 264, 12 Am. St. Rep., 473; Sinkkorn v. Lexington, &c., Co., 112 Ky., 205, 65 S. W., 356, 23 Ky. Law Rep., 1479; Hardwick v. Franklin, 120 Ky., —, 85 S. W., 709, 27 Ky. Law Rep., —.)

The jailer is merely the custodian of the courthouse, and can no more be held responsible than the county judge or justices. We are earnestly asked to overrule the decisions referred to, but this we can not do. The rule thus declared has been acquiesced in by the Legislature, in two revisions of the statute. By section 1840, Ky. St., 1903, the fiscal court has jurisdiction “to erect and keep in repair public buildings, secure a sufficient jail and a comfortable and convenient place for holding court at the county seat. ’ ’ The court must take judicial notice that the circuit court of Jefferson county is composed of six judges, and that Louisville is a city of the first class. It is alleged in the petition that the elevator fell from the fifth floor of the building to the basement. Some *123 means of getting the people to the upper floors of such a building must be provided by the fiscal court, in the discharge of its duty to secure a comfortable and convenient place for holding court. In buildings as high as this, elevators are now in common use, and it was undoubtedly within the jurisdiction of the fiscal court to supply the courthouse with such conveniences as are used in this class of buildings. The demurrer to the petition admits as true its allegations of fact, but not its conclusions of law. On the facts admitted, the law must be determined by the court.

2. As to the Fidelity & Casualty Company, as its contract was only to'indemnify the county and fiscal court against loss, no action can be maintained against it by the plaintiff where neither the county nor the fiscal court are liable to her.

3. As to the Geiger, Fiske & Koop Company, it is earnestly argued that it should be held responsible, because it is alleged in the petition that the elevator was in a dangerous condition when accepted from the contractor by the fiscal court. It is not averred that it knew that it was in a dangerous condition, but that it knew, or by the exercise of ordinary care could have known, this. Substantially the same question was presented in King v. Creekmore, 117 Ky., 172, 77 S. W., 689, 25 Ky. Law Rep., 1292. In that case the defendant leased to another a steam engine which exploded while operated by the lessee, injuring the plaintiff; and it was averred that the boiler was defective, and that the defendant so knew, or could have known by ordinary care. It was held that the defendant was not liable. That case approved Losee v. Clute, 51 N. Y., 494, 10 Am. Rep., 638; Curtin v. Somerset, 140 Pa., 70, 21 Atl., 244, 12 L. R. A., 322, 23 Am. St. Rep., 220; Necker v. Harvey, 49 Mich., 517, 14 N. W., 503; and Lewis v. Terry, 111 Cal., 39, 43 Pac,, 398, 31 L. R. A., *124 220, 52 Am. St. Rep., 146. The leading case on this subject is Winterbottom v. Wright, 10 M. & W., 109, which was followed in Longneid v. Holladay, 6 Ex. Ch., 761; Hessen v. Pindar, L. R., 9 Q. B. Div., 302; Ziemann v. Kieckhefer Elevator Manufacturing Company (Wis.), 63 N. W., 1021; Collis v. Selden, L. R., 3 C. P., 495; Bank v. Ward, 100 U. S., 195, 25 L. Ed., 621; Goodlander v. Standard Oil Company, 63 Fed., 400, 11 C. C. A., 253, 27 L. R. A., 583; Bragdon v. Perkins-Campbell Company, 87 Fed., 109, 30 C. C. A., 567; Daugherty v. Herzog, 145 Ind., 255, 44 N. E., 457, 32 L. R. A., 837, 57 Am. St. Rep., 204; Carter v. Harden, 78 Me., 528, 7 Alt., 392; McCaffrey v. Manufacturing Company (R. I.), 50 Atl., 651, 55 L. R. A., 822, 91 Am. St. Rep., 637; Marvin Safe Company v. Ward, 46 N. J. Law, 19; Burdick v. Cheadle, 26 Ohio St., 393, 20 Am. Rep., 767. Where the defendant sells a thing which he knows is dangerous, and conceals the danger from the purchaser, a different question is presented. (Huset v. J. I. Case Company, 120 Fed., 865, 57 C. C. A., 237, 61 L. R. A., 303; Heizer v. Kingsland Manufacturing Company, 110 Mo., 617, 19 S. W., 630, 15 L. R. A., 821, 33 Am. St. Rep., 482; Lewis v. Terry, 111 Cal., 39, 43 Pac., 398, 31 L. R. A., 220, 52 Am. St. Rep., 146.) There are authorities to the effect that the seller of a deadly poison or other thing imminently dangerous to human life is liable to a third person who may suffer injury by reason of his negligence. (See Huset v. J. I. Case Company, 120 Fed., 865, 57 C. C. A., 237, 61 L. R. A., 303, and cases cited.) But the doctrine of these, cases is not to be applied to the fall of an elevator, which is charged to be due concurrently to its defectiveness, the unskillfulness of the operator, and his gross neglect in using it, for an elevator which, after being run for months, breaks down by reason of its being operated by an inex *125 perienced and unfit person, and by reason of Ms gross negligence, can not be said to be imminently dangerous to human life. Such an elevator can not be distinguished from a defective steam boiler, a defective coach for the carriage of passengers, a defective wall, defective shelving in a storeroom, or a defective chandelier in a hotel, or the other things for which the maker was held not to be responsible to third persons injured thereby in the cases above cited. The case of Stowell v. Standard Oil Co. (Mich.), 102 N. W., 227, recognizes the soundness of these cases, and rests upon the idea that' the oil sold there was' such as could not be lawfully sold under the statute of the State.

Judgment affirmed.