
    George Reichert, Respondent, v. The Buffalo Spring & Gear Co., Appellant.
    (Superior Court of Buffalo — General Term,
    December, 1895.)
    1. Master and servant—Negligence. '
    It is the duty of the master to furnish a. safé [Hace-for his servants to work, and" supply them with proper and safe tools, and appliances, and to keep them in a reasonable condition Of, repair,., and if he fails in this respect he is liable to the servant for any injpry which he has ■ received through such neglect. • ....... ......
    ¡3. Same—Assumption of risk.
    But this rule does not apply where thé servant has knowledge that the machinery is out of. repair, or has- the same knowledge as the inaster that there are defects which render it unsafe tó use thé machinery; in such casé, if he is willing to use the defective machinery, knowing it to be such, he assumes the risk-thereof, and is not entitled to recover for an injury caused thereby.
    3. Same. .
    •While operating 'an elevator in defendant’s building plaintiff was injured by a load of carriage seats falling -upon him from the floor ahoye; where they were dumped into the elevator shaft by another employee who saw the door open and. supposed the elevator to be at . that floor. Plaintiff had complained the same day to the master ■ mechanic that the doors did not -close properly, and on his passage down ■ just previous to the • accident had seen that the door at that-floor did not close. Held, that .he assumed the risk of its operation, and was guilty- of negligence in not closing the., door, and was- not entitled to recover.
    Appeal from judgment in favor of the plaintiff, and from -order, denying motion for a new trial.
    
      
      Box, Norton & Bushnell, for appellant.
    
      C. S. Crosser, for respondent.
   Titus, Ch. J.

This action is brought to recover damages which the plaintiff sustained while in the employ of the defendant, in having a load of carriage seats thrown down upon him by one of the employees of the defendant. The accident occurred on the 10th day of September, 1892. The plaintiff was employed to run the elevator in the defendant’s factory, and had been employed every' day since the thirty-first day of May preceding.

The elevator shaft was entirely closed, with doorways opening onto each floor; these openings were provided with automatic double sliding doors, and opened as the elevator approached the floor either ascending or descending, and closed as the elevator left the floor.

"When the elevator was on the level of a floor the doors were fully opened, and as the elevator passed three or four feet either up or down the doors closed, coming together in the center of the opening.- The elevator was used for carry: ing material from one floor of the building to another.

There is some proof in the case that the plaintiff was in the habit of opening the doors.and then tieing them back, or blocking them, so they would not close without loosening the fastenings; but we do not think this is important, in the" view taken of the case, as there is no evidence'that the plaintiff on this occasion fastened the doors open.

An employee on the fourth floor, having occasion to send a truck load of material to the floor below, pushed the truck towards the elevator, and, seeing the door open, and supposing the elevator was at that floor, ran his truck into the opening and dumped the truck and twenty-five carriage seats into the elevator shaft, and they fell upon the plaintiff, who ,was in the elevator unloading wheels at the third floor, the one next below, and caused the injuries of which he now complains.

It appears, further, that on the morning in question the doors opening -onto the fourth floor had got out of order, and the plaintiff, notified the head engineer of the defendant, and the master mechanic of the shop-was sent. to fix them. He put on a new rope, and then the plaintiff went up and down past these doors in the elevator a few times, td 'see- if they would work.. They did not work well;' according to the plaintiff’s testimony thóy would not' shut quick enough, and jerked. He says he “ told the man fixing them the doors ' were not right, they would not shut, and that he would have to fix them,” and he .was told that it Was dinner time; it is all right, they will do ; if something- is wrong I will fix it some' . other time. It is twelve o’clock now.” Nothing further was done to fix the doors, and the plaintiff ran the elevator in the afternoon until about three o’clock. Not having business oh the fourth floor,' he did not open the doors until he came down at that hour with the foreman, when he opened the doors at this floor and let the foreman out, but did not stop the elevator, nor did he look to see-whether the doors closed as the elevator passed on down, as they would have done if in good working order. ' Before the elevator had passed four ‘ feet below the level of the floor he would have known, had he looked, that the do.ors did not close, but -stood wide open, and remained in this condition- until the accident.

The witnesses Hoover and Handsborough were the first ones at the door after the ‘accident, and before the plaintiff •had been rescued from the elevator. Hoover says that the doors werfe opened,- and he took the door and pulled it a little, and it closed up.” The' door at this -time was not blocked' or 'tied -back, but had from some cause stuck in' the pocket and would not close of itself.

It is the duty of the master to furnish a safe place for his servants, to work, and supply them with proper and safe-tools and appliances, and to keep them in a reasonable condition of repair, and if he fails in this respect he is liable to the servant - for any injury which he has received through the master’s neglect Wright v. N. Y. C. R. R. Co., 25 N. Y. 562; Laning v. Same, 49 id. 521; Flike v. B. & A. R. R. Co., 53 id. 549; Cone v. D., L. & W. R. R. Co., 81 id. 206; Benzing v. Benzing, 101 id. 547 ; Murray v. Usher, 117 id. 543; Cregan, v. Marston, 126 id. 568.

But this rule has no application where the party complaining has knowledge that the machinery is out of repair, or has the same knowledge as, the master that there are defects which render it unsafe to use such defective machinery. In' such cases the servant assumes the risks of his employment, • and if he is willing to. use defective machinery, knowing it to be such, he cannot recover because his own negligence and ■ want of care are the cause of the injury.

In Marsh v. Chickering, 101 N. Y. 396, in speaking of the • duty of the master, Judge Miller, in the opinion of the court, says: “The rule stated, however, is not applicable in all cases, and where the servant has equal knowledge with the master as" to the machinery , used or the means employed in . the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries; sustained by reason of the use thereof. * * *" He. fully comprehends that the instrument which he employs is not- perfect, and, if he is thereby injured, it is .by reason of his own fault and • negligence.”

In Hart v. Narumburg, 123 N. Y. 641; the Court of Appeals reversed a judgment in favor of the plaintiff for injuries received while running an elevator in the defendant’s manufactory, for the reason that the servant had the same means of ascertaining the defective condition of the elevator as the master, and he could not recover for injuries received . from such defective condition.

In Davidson v. Cornell, 132 N. Y. 228, the Court of Appeals, in reversing a judgment in favor of the plaintiff for. injuries received from the use of defective machinery while in the defendant’s employ, held that where a servant enters into hazardous employment he assumes the risks of the service, and those which are apparent to ordinary observation,1 and when he accepts or continues in the service with knowledge of the character of structures from which injury may be' apprehended, lie also assumes the hazard incident to the situation. .

In Cregan v. Marston, supra, the court held that the general rule "that the master owes' to the servant the duty of keeping machines and appliances. in repair does not. apply to defeats, arising-hi the daily use of the machine, and of which the servant has as much knowledge as the master, and which can be easily remedied by the workmen with material- supplied for that purpose by the master.

Many other cases might be cited to the same effect, that when the defect in a machine is as apparent to the. servant as to the master, or when a defect exists of which the servant has full knowledge, and while, continuing to use such defective machinery, receives an injury, or when the defect is one occurring from the daily use of machinery and one not per-manent in character, but such as can be easily remedied by the workmen,, and to repair which proper materials are provided by the master, in these cases the servant cannot.- recover for any injury received, because--it is attributable in law to his own negligence in.the use of defective machinery, the con-, dition of which lie knows, or ought to know, as well as the master.

Considering the facts in this case and measuring them by the standard adopted by the courts as suggested above, the plaintiff cannot recover in this action. According to his own testimony he knew that the doors to the fourth floor were out of repair .and would not automatically close, as .he had' run the elevator "up and down that morning for the very purpose of determining that fact, and told the workman who made the repairs that it would not do, that the doors would not.-close, and yet, knowing this, and that there -was a constant liability that the workmen on that floor would use the elevator* he recklessly and heedlessly, in passing down,, permitted the doors leading into the elevator shaft on the fourth floor- to remain open. He. must have known they were open, for, if. they had. been in working order, they would have been closed before he passed by the opening and in full view. He must have known it, because the last time he opened the doors before the accident he saw the doors would not close, and he had no reason to suppose the defect had been repaired.

We do not think it necessary to consider any of the other questions raised by the counsel for the defendant on this appeal. We rest our decision on the sole ground that the plaintiff was guilty of negligence in not seeing to it that. the door to the elevator shaft was closed, having full knowledge of the • fact that the door was out of repair and would not automatically close,

The judgment and order appealed from should be reversed and a -new trial ordered, with costs to abide the event.

Hatch, J.

In this case I agree fully with the conclusion reached by Judge Titus and the- ground upon which he places his decision; but I am also of the opinion that defendant’s negligence- was not established and that plaintiff took the risk of the situation which led to his injury,

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