Shellaberger v. Fisher

Citations

• 143 F. 937
• 5 L.R.A.N.S. 250
• 1906 U.S. App. LEXIS 3803

Syllabus

<p>1. Carriers—Automatic Elevator—Absence of Operator Not Actionable by Passenger of Ordinary Discretion.</p> <p>The operation of an automatic, push-button, electrical passenger elevat- or is not negligence which is actionable by any passenger except a child of years so tender that he cannot know the danger and appreciate the risk of his contact with the door or side of the shaft when the car is moving, because a passenger of sufficient maturity and discretion to appreciate this danger and risk would be guilty of contributory negligence if he permitted himself to suffer from it.</p> <p>2. Same—Absence of Operator May Be Actionable by Child of Tender Years—Facts.</p> <p>The operation of such an elevator, to carry passengers without an operator in an apartment building where several children under 10 years of age lived, and used it, in a city in which the duty to employ an operator was imposed by ordinance and. the failure to discharge this duty was made a misdemeanor, constitutes sufficient evidence of negligence actionable by a child between 5 and 6 years of age, who was injured while running the elevator by getting her leg caught between the floor of the car and the second floor of the building as the car ascended, to warrant the submission of the question of negligence and the question, whether or not such negligence was the proximate cause of the injury, to a jury.</p> <p>3. Negligence—Contributory Negligence—Child Too Young to Appreciate Her Risk Not Guilty of.</p> <p>A child of years so tender that he cannot understand or appreciate the risk he runs is not chargeable with the duty to avoid it, and hence is not guilty of contributory negligence, if he fails to do so. The duty of an infant is commensurate with his maturity and capacity.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 121-129.]</p> <p>4. Carriers—Negligence—Owner of Passenger Elevator Owes Highest Degree of Care.</p> <p>• Owners and operators of passenger elevators owe