8 FDDERAL REPORTER.
proof in this case fails to show such fraudulent purpose. The result is
that the prayer of the bill must be denied, the bill dismissed, and the
complainants decreed to pay the costs.
A WOLCOTT‘V. STUDEBAKER ct al.
y (Ctrcuit Court, M D. Illinote. December 15, 1887.)
1. Masrmn ann SERVANT*N-EGLIGENCE or Fmnow-Snnvanrs. - it
. An elevator boy. an engineer. and plaintiff were in the employ of defend-
ant. The engineefs duty was to furnish the motive power for an elevator,
which carrie plaintiff to an upper story to his work, and the boy’s duty was
. to run the same. The engineer always took the elevator on a trial trip every
morning with nobody on oard. On one occasion plaintiff entered the eleva-
tor in the morning shortly before the hour when e was required to go to
work, just as the engineer was taking it on the trial trip. The elevator boy
was not there, and the plaintiff was injured. Held, that if the injury was
caused by negligence other than that of plaintiff, it was the negligence of the
elevator boy or the engineer, who were fellow—servants of plaintiff, for which
defendant would not be liable; the ordinance of the city requiring persons
owning elevators to keep a competent person to run them being merely de-
claratory of the common·law duty and liability in regard to such employes}
2. Pmuyrrcn nv Crvu. CASES-—DIBMISBAL AND NONSUIT—ILLINOIS Cinonrr.
In the federal courts of Illinois, where, at the conclusion of plaintiffs testi· ·
mony, the court would, if a verdict were rendered for him, set the same aside,
and motion is made by defendant to direct a verdict for him, plaintiff is not
allowed to take a; nonsuit, but may withdraw a juror and discontinue.
At Law. V ` V
Suit fordarnages for injury to plaintiff while in the defendants’ em-
ployment, resulting from an elevator accident. The plaintifl"s testimony
tended to show that he was employed bythe defendants, who were manu-
facturers and dealers inwagons, carriages, etc'., in the city of Chicago,
to crate or box carriages. His place of work wason the fourth floor of
defendants’-building. It was his habit, and that of the other employes,
to begin work at 7 o’clock in the morning, and to be carried to the fourth
floor by the elevator in question. The elevator was used to carry both
freight and passengers, and ordinarily began running at about five min-
utes before 7 o’clock. It was made to descend to the basement of the
building, but the employes got on the elevator platform at the first floor.
The elevator was under the control of defendants? engineer, who had
charge of the engine in the basement, which supplied the motive power
. to run the elevator. Defendants also employed an elevator boy, who
took charge of the elevator when the engineer informed him it was in
working order, and ready to carry the men to their work on the upper
. floors. Plaintiffs testimony also tended to show that it was the practice
of the engineer to make a trial trip before 7 o’clock, with no one on the
elevator, for the purpose of getting the air out of the cylinders, and the
’*$See note at end of case. '