
    Alice Maud Biddiscomb, as Administratrix, etc., of William Biddiscomb, Deceased, Appellant, v. Alpin J. Cameron and William P. Denegre, Respondents.
    
      Negligence—failure of the safety clutch on an elevator, examined and found to work well less than a month before, to work.
    
    An employee in a mill, owing to the failure of a safety clutch on an elevator therein to operate and arrest the fall of the elevator car into which the employee had stepped, was killed on February 15, 1897. In the latter part of January, 1897, one of his employers, the lessees of the mill, and their engineer carefully overhauled the elevator, examined the clutch, oiled and tried it by dropping the elevator car and found it to he in good order. Under the circumstances existing when the employee was killed, the safety clutch should have operated. Held, that the employers had used reasonable care in providing a safe appliance and were not liable for their employee’s death;
    That the fact that when the test was made the car was only ten feet from the bottom of the shaft, while on the occasion of the accident the car dropped from the third story, was immaterial.
    Barrett, J., dissented.
    Appeal by the plaintiff, Alice Maud Biddiscomb, as administratrix, etc., of William Biddiscomb, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 25th day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      John Brooks Leavitt, for the appellant.
    
      Henry Galbraith Ward, for the respondents.
   Van Brunt, P. J.:

This action was brought by the administratrix of William Biddiscomb, deceased, to recover damages suffered by reason of the death of said Biddiscomb, caused by the falling of an elevator which was operated in the defendants’ factory at One Hundred and Thirtieth street and the Boulevard. It appeared from the evidence that the elevator was in a mill leased by the defendants for two and one-lialf years from the 10th of April, 1895; that the deceased on the 15th of February, 1897, having loaded a bale of wool on the elevator at the basement, ascended with it to the third floor and then unloaded the bale, taking it to a room on that floor. While the deceased was gone from the elevator, the cable which supported the elevator car unwound from the drum, which was situated in an adjoining shaft. When he came back lie stepped into the elevator and the car fell to the cellar, and from the injuries occasioned by the fall he died. It appears from the evidence that the elevator in question was one in common use and that the appliance for stopping it in case of a breakage of the cable or in the event of its becoming slack, was the ordinary appliance used for such purposes. It further appeared that the elevator was operated by an iron bar or pipe running from the basement to the roof, which was pulled up or down as the operator desired to go up or down, and that the car was stopped by the centering of a clutch. If the bar was pulled too far up, the cable unwound upon the drum and the car descended; if pulled too far down, the cable wound up on the drum and the car ■ascended. As above stated, the drum in question was situated in an adjoining shaft and the cable from the drum passed over two pub leys to the kingbolt which was at the top of the car. The safety clutch was prevented from operating by the pulling of the cable upon the kingbolt. When such tension was relieved by the breaking of the cable or by its becoming slack, the clutch was supposed to operate and to prevent the falling of the car. On the occasion in question the deceased upon stopping the car must have pulled the rod too far so that he reversed the action of the drum and the cable unwound from the drum and hung down in the shaft in which the drum was situated. The car for some reason, probably because it was jammed, did not descend as it should have done under those circumstances, but stuck fast until the deceased stepped into it, when the jar seems to have released it and it started to fall, pulling the slack of the cable over the pulleys and going down to the cellar. The cable was not broken.

The question presented upon this appeal is whether the defendants provided a reasonably safe appliance for the use of the deceased. The evidence shows that the elevator was of a construction in common use, and the safety appliances were such as ordinarily obtained in such structures. The defendants were not the insurers ■of the safety of the appliances provided by. them, but they were bound to use reasonable diligence in providing safe appliances for the use of their employees. From the evidence it would seem that the clutch in question ought to have operated under the circumstances presented here. If, however, the defendants used reasonable care in seeing that these appliances were in order, the fact that they did not operate under circumstances in which they might naturally have been supposed to do so, does not make them liable for the injuries sustained. There is evidence it is true upon the part of some of the witnesses who were examined on behalf of the defendants, to the effect that with the slack of the cable in the adjoining shaft the clutch could not be expected to work because of the tension which the weight of the cable hanging in the adjoining shaft exerted upon the kingbolt of the elevator. It may be that there was a disputed question of fact in this regard, which could •only be resolved by the jury if the defendants claimed exemption from liability upon this ground only.

It appears that from October, 1896, to the latter part of January, 1897, the mill was shut down, and that before it was started up in •January the elevator was carefully overhauled by one of the defendants and by their engineer, the clutch examined, oiled and tried by dropping the elevator, and found to be in good order. It is urged upon the part of the appellant that the machinist was not a proper person to conduct such an examination, and that he could not judge as to whether the clutch was in good order or not. The evidence upon the part of the plaintiff, hówever, shows that the clutch was .not an intricate piece.of machinery by any means, and that an ordinary inspection by a competent man would enable him to discover whether it was in Avorking order, and there is no evidence but that Grill, the machinist, was qualified as such. Indeed, the evidence of the trial of the elevator and that the safety clutch was found to act, Avas the best kind of inspection that could possibly have been made. The criticism that this trial took place ten feet from the bottom of the shaft, and, therefore, presented no evidence that the clutch would work at the top of the shaft, hardly needs comment in view of the evidence as to what causes the clutch to operate.

Upon a consideration of the evidence, therefore, it would appear that the defendants had performed their full duty in respect to this clutch and had used -reasonable care in providing a safe appliance for their employees. The theory of the plaintiff, as stated by counsel, seems to be that a master must see that the place where his servant works or the appliance with which his servant is provided or the machine he operates is safe. We are not aware of any such rule which makes the master an absolute insurer of the safety of the appliance and of the place where his servant woi'ks. As has already been stated, he is bound to use reasonable care in this regard; and that is all that the law requires.

Hone of the exceptions to the admission and rejection of evidence seems to be of sufficient gravity to call for special comment.

The judgment appealed from should be affirmed, with costs.

Rumsey, Patterson and Ingraham, JJ., concurred; Barrett, J., dissented.

Barrett, J. (dissenting):

The cable by which the car was raised and lowered was connected with a kingbolt, which was fastened to a lever. When the cable-exerted its usual strain, one end of the lever was elevated. If, however, the cable broke, or for any other reason became slack, a weight called a counterpoise acted upon and elevated the other end of the lever, and this action resulted in placing pieces of metal, called eccentrics, under the corners of the car and stopping its fall. It is practically conceded (and at least the jury might have found) that this accident occurred because the counterpoise failed to overcome the resistance of the slack cable above the car and raise the other end of the lever so as to bring the eccentrics into play. A little consideration will show that, should the car become jammed near the top of the hatch, the slack would accumulate near the drum and outside of the hatch, while should the jamming occur near the bottom the slack would accumulate inside the hatch, right above the car. Doubtless in the former case the counterpoise would have to overcome a greater resistance than in the latter. This case was of the former kind, and it is contended that the clutch was not there designed to work.

The presiding justice, however, intimates that it was at least a question for the jury whether the defendants were not bound to provide a clutch which would act in any case where the cable should become slack; that is, whether the slack should accumulate inside or outside the hatch. This is manifestly correct. It would be strange, indeed, to hold that the defendants were under a liability to provide a clutch which would work in case of" an accident near the bottom of the hatch, where the injury might be slight; but that where the car should get jammed near the top, and death would quite certainly result from the fall, they were under no such liability.

This point being established, it seems to me quite clear that the judgment should be reversed. The defendants do not contend that the clutch was designed to act in the case of an accident like the present, and that, so far as they knew, or had reason to know, it was in good working order to protect against such.an accident. On the contrary, they distinctly contend that they were under no liability to furnish a clutch which would work in an accident like the present, and they offer the evidence of an employee of the manufacturer and others to show that this particular clutch was not designed to act in such a case. Under such circumstances the facts as to the inspection seem immaterial. There was a radical defect in the clutch itself which no inspection could remedy. The evidence shows merely that the clutch was to a certain extent overhauled and repaired, and that when the car was lifted a few feet from the ground and dropped^ the clutch worked. But if the counterpoise was not designed to work when the slack accumulated outside the shaft, repairing was of no use, and the test was applied only at the bottom of the shaft, when the slack would be inside of it. In short, the defendants simply made a test in conformity with their present erroneous theory as to. what the clutch should be required to do, and found that test satisfactory.

I think the judgment should be reversed and a new trial ordered.

Judgment affirmed, with costs.  