George A. Fuller Co. v. McCloskey, 228 U.S. 194 (1913)

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George A. Fuller Co. v. McCloskey

No. 176

Submitted March 7, 1913
Decided April 7, 1913
228 U.S. 194

ERROR TO THE COURT OF APPEALS

OF THE DISTRICT OF COLUMBIA

Syllabus

The averments in the declaration, when taken together, held sufficient to allow proof of negligence on the part of one defendant, although one specific charge related exclusively to the other defendant as to whom the case was dismissed.

A modification of the requested charge so as to make it conform to the facts of the case, held in this case not to have been error, the jury having been properly instructed by the court on the subject of contributory negligence.

A variance between proof and declaration should be called to the attention of the trial court when the declaration can be met by an immediate amendment.

A contractor erecting a building arranged with another and independent contractor who was putting in the elevator to use and control the elevator and an operator therefor before it was turned over to the owner; he also arranged to allow his own subcontractor painting the elevator shaft to use the elevator and to signal when and where the elevator was to stop to let the employees off and take them on. Held that the contractor was the sole master, and was responsible for damages sustained by an employee of the subcontractor resulting from negligence of the operator in failing to respond to signals properly given by such employee.

35 App.D.C. 595 affirmed.

The facts, which involve the liability of a contractor for personal injuries caused by negligence in operating an elevator, are stated in the opinion.