On appeal from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld and Ackerson. For affirmance -- Justices Case, Oliphant and Burling. The opinion of the court was delivered by Wachenfeld, J.
The plaintiff appeals from a judgment of dismissal entered in the Superior Court, Law Division, on motion of the defendant made at the conclusion of the plaintiff's case. The appeal was taken to the Appellate Division of the Superior Court and certified here on our own motion.
The action arose out of injuries sustained by the plaintiff by reason of the falling of an elevator constructed on the exterior of the defendant's building. The plaintiff was at the time an employee of Sears, Roebuck & Company, the tenant of a portion of the defendant's premises on Ellison Street in Paterson.
The lease in effect at the time of the accident was entered into on June 17, 1946, between Sears, Roebuck and Dixon Properties, Inc., the defendant's predecessor in title. The lease specifically demised "the basement only, 140 x 48, containing approximately 6,760 square feet" and in the fourth paragraph contained these words: "Landlord hereby covenants
that he will, at his own expense, keep in good condition and repair during the term of this lease * * * elevators * * * in or about the demised premises." There was no elevator in the building at the time the lease was made nor did the landlord by the terms of the instrument obligate itself to install one. The lease did provide, however, for an increase in the rent "when hydraulic or electric lift is installed."
Dixon Properties had the elevator installed on September 11, 1946, and the defendant acquired title to the premises by conveyance on October 18, 1946. At the time of the conveyance the officers and stockholders of the defendant were the same persons as the officers and stockholders of Dixon Properties.
The accident occurred on November 1, 1946. On several occasions prior thereto the elevator had stuck and otherwise failed to operate properly. This had been called to the attention of Nichimson, the president of the defendant and its predecessor company. On one occasion he said: "I will get it fixed," and on another: "Take your time, I will fix it for you." When it was pointed out to him that a nut on the motor of the elevator had come loose, he said: "O.K., I will fix it right away." Nichimson among other duties had the job of general maintenance and repair of the premises and had personally attempted to make repairs to the elevator before the accident.
The lift was used primarily by the tenant, Sears, Roebuck, in transporting its goods to and from the basement. It was, however, in a common yard accessible to all the tenants of the defendant and persons other than employees of Sears, Roebuck used it on occasions. One such occasion was in the latter part of October, when the defendant converted the heating system of the building from coal to oil. This took approximately two weeks, during which the elevator was used regularly by a crew of about eight men engaged in the conversion.
On November 1st plaintiff loaded shingles on the elevator in the basement, went upstairs and, operating the elevator from there, raised the platform to a height of thirty to thirty-six inches above the ground. He then loaded the shingles on
a truck which departed. The plaintiff tried to lower the elevator but it stuck. He got on the platform and attempted to operate it by using the control cords but still the platform would not move. He requested the assistance of one Hermanie, an employee of another tenant of the premises who happened to be present. Hermanie put his hands on the platform and moved it from side to side, a process which in the past had restored the operation of the elevator when it became jammed. As soon as Hermanie did this, ...