
    John McHale, Respondent, v. The Fidelity and Casualty Company, Appellant.
    
      Negligence—an engineer directed by an elevator inspector to go into the elevator pit — ' direction as to moving the elevator.
    
    In an action where negligence was charged against a corporation engaged in the work of inspecting elevators, it appeared that its elevator inspector desired to inspect the. driving belt of an elevator, and also certain “sheaves” contained in a box at the bottom of an elevator shaft. The inspection of the belt was to be made from a point where the inspector could not see the elevator, and it was necessary that while it was being inspected the elevator should be in motion. Before going to inspect the belt the inspector asked the plaintiff, who was the engineer of the building containing the elevator, to remove the cover from the box which contained the sheaves, and told theielevator attendant to go up slowly. Whether he added also, and to come down slowly, was in dispute. Whatever the ■order was, the plaintiff heard it; he could also tell the position of the elevator from a drum in sight. The inspector then went into another room to examine the belt, and the plaintiff proceeded to remove the cover of the box in the bottom of the elevator pit, and while he was so doing the elevator descended upon and injured him.
    
      Held, that the accident was not the result of any negligence on the part of the inspector;
    That in going into the shaft the engineer took the risk attendant upon such action.
    Appeal by the defendant, The Fidelity and Casualty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Perry D. Trafford, for the appellant.
    
      Charles M. Parle, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages sustained by the plaintiff, an engineer employed in the building No. 237 Mercer street, in the city of New York, and which he claims were occasioned by the negligence of an elevator inspector employed by the defendant. There is only one point upon which there is any conflict of evidence in the case. In the course of its business the defendant was in the habit of inspecting elevators, and upon the day of the accident one of its inspectors visited the premises in question for the purpose of inspecting the elevator, which had been done repeatedly before. The plaintiff was an engineer, and for some years prior to the accident had been in charge of the elevator machinery in-the building and was entirely familiar with its operation and management, and had been present at many inspections. The person who' ran the elevator had been employed at that woi’k for about a year prior to the accident, and continued in such employment until the time of the trial. The building was five stories high, and the elevator was a passenger elevator running to the top of the building. It was worked by three cables winding on a drum, turned by an engine; as the drum was wound up the car was hoisted and as it unwound the car was lowered. - Opposite the elevator shaft, and separated from it by a brick partition, was the engine room. One in the engine room could see the hoisting cable but could not see the elevator drum nor the position of the elevator car in the shaft. At the bottom of the shaft near the front, and just below the level of the floor, was a wooden box covering some sheaves. ■ Part of the duty of. the inspector was to inspect these sheaves and also . the driving belt. In order to make the proper inspection of the driving belt the machinery had to be in motion, and it had been customary to take off this cover of the sheaves for the purposes, of inspection. After the inspector had proceeded for some time with his inspection he was desirous of examining the driving belt and had a candle in his hand for that purpose. The engineer, the attendant of the elevator (the elevator apparently being at the bottom of the shaft) and the inspector were standing at the'shaft. The plaintiff states that he was recpiested by the inspector to remove the box. Thereupon, for the purpose of inspecting the belt, the inspector gave an order to the elevator attendant, to go up slowly, as he and the plaintiff testified, but the elevator attendant says that the Order was to go up slowly and to come down slowly. The inspector then went, into the engine room for the purpose of examining the belt while, in motion, and the plaintiff went into the elevator shaft and commenced to take off the cover from the sheaves. He was stooping down for that purpose when the elevator came down upon him, and upon giving a cry it was heard by the inspector, who rushed out from the engine room and' caused tlie elevator- to rise and pulled out the plaintiff, who had been considerably injured.

This action was brought for the purpose of recovering damages for such injuries. Upon the trial a verdict- was -rendered for the plaintiff, and a motion was made for a. new trial upon the judge’s minutes, which was denied. From the judgment and order .thereupon entered this appeal is taken.

The cpiestion involved upon this appeal is as to whether there was any. evidence of negligence upon the part of the- defendant’s inspector. As has already been stated,, there is substantially no dispute in regard to what happened except in the contradiction arising between the plaintiff and the inspector on the one hand and the elevator attendant on. the other as to the order given at the time the elevator was moved. The plaintiff was standing beside the inspector,

■ and the inspector had his candle ready to examine the belt. This inspection was to be conducted in the engine room, from which the elevator shaft could not be seen. That' being the situation, a conversation took place between the plaintiff and the inspector as to taking off the cover from the sheaves so that they could be examamined. The inspector says, and the plaintiff corroborates him, that he gave the order to the elevator attendant to go up slowly, and then started into the engine room for the purpose of examining the belt, which could only be done while the elevator was in motion, of which the plaintiff was well aware. If that had been the condition, it is plain that there could be no possible ground for claiming negligence upon the part of the inspector. The elevator attendant, however, swears that his order was to go up slowly and to come down slowly, and that it was in obedience to that order that he had gone up the five stories in the building and come down again in the short space of time shown by the evidence. It appears, as the inspector says, that it was only half a minute before he heard the cry of the plaintiff and found the elevator in the bottom of the shaft. The plaintiff was perfectly well aware that the inspector had had the elevator moved for the purpose of examining the belt, and that he started .into the engine room with that object. He was immediately alongside of the inspector when the order was given to move the elevator. The inspector, of course, under these circumstances, had a right to assume that the plaintiff was acquainted with the order as given; and, if there was anything in that order which would! make it dangerous for him to go into the shaft to take off the cover;, the inspector was justified in supposing that he was fully acquainted with that risk. . There is no pretense but that the plaintiff heard the order to go up. There is no pretense that the order to come; down, if given at all, was given at any other time than at the insfant. the order to •go up was given.

It is claimed that, in view of this order to come down, it was the ' duty of the inspector to remain by the shaft and to warn the plaintiff when the elevator came down. But the evidence shows conclusively that the plaintiff went in, knowing that the inspector would not give him any such warning and would not remain there-while he was taking off this box. He knew that the elevator was-being moved for the purpose of inspecting the belt; he knew that-the inspector was going into the engine room for that purpose, and. that from the engine room he could not see the position of the elevator in the shaft, although, perhaps, he might see some of its cables. He went of his own volition into the' shaft to take off this box, and paid no attention whatever to the position of the elevator, •although the drum was within a short distance of him, in plain sight, from which he could tell the position of the elevator at anytime. Under these circumstances, it is difficult to see upon what ground negligence of the inspector can be predicated.

Some claim is made that, upon previous occasions, there had been two inspectors, and that one or the other of them had taken the cover off this box. But it also appears that the plaintiff had done this upon several other occasions, and that • it was not a uniform practice for two inspectors to attend. The plaintiff was perfectly familiar with the method of inspection and the working of the elevator, and, as already stated, had taken off this box many times before for the purpose of inspection. He was, therefore, conversant with the risk, and there does not seem, in any aspect of the case, to have been any evidence of negligence on the part of the inspector.

There might, perhaps, have been some foundation for such a claim if the plaintiff had had any reason to suppose that the inspector was to remain there to give him warning of the approach of the ■elevator. But, according to his own testimony and that- of the inspector, he had no reason to suppose .that the' elevator would •c.ome down; and it is evident that neither the plaintiff, who heard The order, nor the inspector, who gave it, supposed that it would. As already stated, the plaintiff knew that the inspector was not going to remain, hut that he was going into the engine room, and, knowing these things, he took the risk of going into the shaft and having the elevator come down upon him. We are of the opinion, "therefore, that there was no evidence whatever showing the negligence of the inspector, and that the complaint should have been •dismissed.

Judgment and order reversed and a new trial granted, with costs to appellant to abide event.

Barrett,. Bumsey, Williams and Patterson, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  