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Dover Elevator Co. v. Swann3/25/1994
ch would preclude plaintiff's reliance on res ipsa loquitur. Mr. Moynihan's trial testimony was based upon his review of all the defendant's maintenance records regarding the work done on elevator number two, in addition to his on-site inspections of the elevator and machine room. Pertinent portions of that testimony consisted of the following:
"[PLAINTIFF'S COUNSEL:] Mr. Moynihan, I would like you to look at what has been marked for identification as Plaintiff's Exhibit 47. Is this a blowup of the time and repair order and certificate of time for 1/7/87 that you are looking at?
[MOYNIHAN:] That is correct, sir.
[PLAINTIFF'S COUNSEL:] Now, Mr. Moynihan, can you tell from your review of this document what was being done by Mr. Bothell on that occasion; that is, January 7, 1987?
[MOYNIHAN:] Yes. On this document it reads, 'Car number 2 wasn't leveling. Cleaned 14 and 15 contacts, as it was burned closed, and replaced brushes left car in service.'
[PLAINTIFF'S COUNSEL:] Okay. Is that the same car that you viewed when you were in this building in December of 1990?
[MOYNIHAN:] Yes.
[PLAINTIFF'S COUNSEL:] What is the significance when one of these contacts or two of these contacts burn out? What does that mean?
[MOYNIHAN:] Oh. When they are burned closed, that means that they were welded, and if they are welded, that must mean that you have developed very high heat for these contacts to be welded or ... stuck together.
[PLAINTIFF'S COUNSEL:] How does that affect the leveling, when something like this occurs?
[MOYNIHAN:] [The elevator] will go very fast, much faster or slower.
[PLAINTIFF'S COUNSEL:] How does that interrelate to the ability of the elevator to come flush with the floor, or a particular floor?
[MOYNIHAN:] At times it will cause the elevator to overshoot or at times it will cause the elevator to stall in the leveling zone. So, two things can happen: It can stall or it can overshoot.
[PLAINTIFF'S COUNSEL:] Now, on this occasion, what did Mr. Bothell do with those two contacts at 14 and 15?
[MOYNIHAN:] I read his deposition. He took a file to them and filed them.
[PLAINTIFF'S COUNSEL:] In your opinion, sir, is that an appropriate method working on the contacts?
[MOYNIHAN:] Absolutely not.... Terrible. It shouldn't be done. I don't know why he did it. It was wrong. These are very sensitive contacts, the resistance, and putting the file on them is just wrong.... I don't know what he was thinking of.
[PLAINTIFF'S COUNSEL:] Now, what happens if you file down one of these contacts?
[MOYNIHAN:] It will change the resistance, the whole circuit will be changed.
[PLAINTIFF'S COUNSEL:] What, in your opinion, Mr. Moynihan, to a reasonable degree of engineering probability, is the proper course of conduct when a mechanic finds burnt contacts at 14 and 15?
[MOYNIHAN:] Replace [them].
[PLAINTIFF'S COUNSEL:] Why is that?
[MOYNIHAN:] It is the only way to do . First of all, you can't correct them by cleaning them when they are burned like that. They should be replaced." (Emphasis added).
The defense attempted to refute Moynihan's testimony concerning the contacts with the testimony of Ronald Bothell, Dover's technician who worked on elevator number two. Upon reviewing the repair tickets, Bothell testified that he filed and cleaned the contacts on his January 7, 1987 service call. He also testified that this was an appropriate measure under the circumstances, because polishing the contacts "takes the
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