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Ripley v. Frazer

Supreme Court of New York, Appellate Division

March 6, 1912

CLARENCE L. RIPPLEY, Appellant,
v.
FREDERICK FRAZER, Respondent.

APPEAL by the plaintiff, Clarence L. Rippley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 15th day of March, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term, certain questions of fact having been submitted to the jury, and also from an order entered in said clerk's office on

Page 400

the same day denying the plaintiff's motion for a new trial made upon the minutes.

COUNSEL

J. David Enright, for the appellant.

Clifford H. Searl, for the respondent.

KRUSE, J.:

The plaintiff, a electrician, was sent by his employer to repair the electric lights in the defendant's apartment house, in which there was an elevator. The elevator was lighted by a lamp connected with an electric cable, which extended from a fuse box at the fourth floor and entered the elevator at the top, where a break was discovered. The plaintiff sat on top of the elevator, repairing the cable. He knew that if the elevator went to the seventh floor he would be squeezed between the top of the elevator and the ceiling of the elevator shaft. He had looked over the situation there and had called the elevator boy's attention to it, as he says. He told the elevator boy not to run above the sixth floor and the elevator boy promised not to do so. But the boy forgot and ran to the seventh floor, to take a lady passenger there, and plaintiff was hurt. He says the elevator boy was careless, and so the jury found, and probably without difficulty; but the jury also found that the plaintiff himself was lacking in care and caution.

The plaintiff could just as well have stepped from the elevator before it started. He could not work while it was running. The top of the elevator was opposite or near the floor above the one where the passenger entered, and all that he would have had to do was to open the door and step out. He chose to remain. He also knew, if he was observing, that after the boy passed the sixth floor he would probably go to the seventh. He knew he had a passenger. But he says that he paid no attention to whether the boy was following instructions not to go beyond the sixth floor, and he did not know at what floor they were until he was struck.

It is unnecessary to refer to other circumstances, either for or against the claim of contributory negligence. The trial court submitted that question with the others to the jury, in a charge that was apparently satisfactory to the plaintiff, and I

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think the jury was warranted in finding that the plaintiff himself was not free from contributory negligence.

I have given a mere outline of the evidence. There is, however, another question in the case which requires further attention. The presiding judge told the jury that he would not ask them to render a general verdict, but to answer specific questions in writing. He submitted three questions: (1) Was the defendant guilty of negligence which caused the accident? (2) Was the plaintiff guilty of contributory negligence? (3) What damages were caused to plaintiff by the accident complained of? stating that they need not answer the last question if they should find either that the accident was not occasioned by the elevator boy's negligence or that it was occasioned in whole or in part by the plaintiff's negligence. But the jury evidently misapprehended, or forgot that it was unnecessary to answer the last question, in the event that they found against the plaintiff upon either of the others. Instructions had been given to the officer in charge of the jury that if they did not agree by a certain time in the course of the evening to discharge the jury. The jury had agreed among themselves that the elevator boy was negligent, and also that the plaintiff himself was guilty of contributory negligence, but had not agreed upon the third question, as they thought necessary to do. The officer was informed that they had not agreed and thereupon, at the appointed time, the jury was permitted to go. The next morning, at the opening of court, they were called, and the record shows the following proceedings: 'Clerk of the Court: Gentlemen of the jury, have you agreed on a verdict and answered the questions submitted to you by the court? Foreman of the jury: We have not. We have answered the first two questions and not the last one. The Court: Not the last one? Foreman of the jury: No, sir. The Court: Jury discharged.'

In this connection it should be stated that immediately after the court had discharged the jury the foreman stepped up to the judge and asked to be excused from service for the afternoon, which was granted. He then asked whether, if the jury ...


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