
    Conrad Bogendoerfer, Plaintiff, v. Marx Jacobs, Defendant.
    
      Negligence — injury from the fall of a freight elevator in common use by several tenants —proof that the defect was in the original construction or was caused by use — duty of care and inspection imposed on the owner.
    
    In an action brought to recover damages for personal injuries, it appeared that the defendant was the owner of a building, which was provided with a fieight elevator furnished for the common use of all the tenants; that while the plain- ' tiff, a carpenter, employed by the tenant of the top floor of the building, was engaged in placing some lumber upon the elevator, it suddenly, when not overloaded nor in actual operation, fell and that one of the counterweights broke from its cable and struck the- plaintiff, inflicting serioiis injuries upon him.
    The evidence negatived the idea that the accident resulted from any negligent or improper action in the actual operation of the elevator.
    It also appeared that during a period of about three years immediate^ preceding the accident, the elevator had never been inspected' by any one competent to determine its condition.
    
      Held, that the evidence would warrant the inference that the fall of the elevator was occasioned by some defect which existed in the elevator as originally con-structed or which was created by time and use;
    That if this inference was adopted by the jury it would necessarily point to negligence on the part of the defendant, who was chargeable with the duty of exercising such reasonable care and inspection as would tend to a timely discovery and remedy of the defect;
    That it was, therefore, improper for the court to dismiss the plaintiff’s complaint
    Motion by the plaintiff, Conrad Bogendoerfer, for a new trial upon a ease containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term. '
    
      John G. Robinson, for the plaintiff:
    
      J. Woolsey Shephard [Joseph MoJBlroy, Jr., with him on the brief], for the defendant.
   Hirschbeeg, P. J.:

The plaintiff was injured by the fall, of a freight elevator in a building belonging to the defendíant. The building consisted of five floors which were leased to various tenants, and the plaintiff was at work as a journeyman carpenter for the tenant of the top floor. While the plaintiff was engaged with an assistant in placing some lumber upon the elevator in order to lower it to the ground floor, the elevator suddenly fell and one of the counterweights tunning in an open' groove broke from its cable and, striking the plaintiff, severed his arm and inflicted -other injuries. The complaint was dismissed at the close of the evidence -on both sides, the cause of the fall of the elevator not. having been established. It -cannot be said upon the facts disclosed by .the record that the plaintiff was chargeable with contributory negligence as matter of law, but the defendant contends that the leasing of the premises relieved him from legal obligation of care in the safe maintenance of the elevator, and that the mere fact of its fall raised no presumption of negligence . which called upon him for -explanation. It did appear, however, that during a period bf about three years immediately preceding the accident the elevator had never been inspected by any one competent to determine its condition, the only inspection made during the defendant’s ownership being by his son at his request, and comprising only an-occasional look at the machinery, which -the son testified “ was not out of order as far as I could see, before the accident,”

It seems to' me -that the question of the defendant’s general liability is contrblled by the decision of this court in Grifhahn v. Kreizer (62 App. Div. 413 ; affd. by Court of Appeals, 171 N. Y. 661). It was held in- that case that a lessee of a building who sublet the same to various tenants.- and who furnished and maintained a freight elevator therein for their common use, owed to an express-man who was using the elevator in the lawful business of one of the sub-lessees, the duty of exercising reasonable care to see that it was ■ safe. The defendant admitted in this case upon the trial that he furnished the elevator in question for the common use of all his tenants, but claimed to be relieved from all obligation of care by the fact that the tenants assumed the actual operation of it. Conceding that that fact would relieve him from the consequences of negligence in the running or operating of the machinery, it cannot be effective as to defects in the machinery itself, and the proof negatives the idea that the accident herein resulted from any negligent or improper act in the actual operation of the elevator.

It seems equally clear to me that this is a case where, in the absence of a satisfactory explanation, the jury might properly infer negligence from the circumstances of the occurrence. That appears to have been the principle underlying the decision in Griffen v. Manice (166 N. Y. 188), and which received the assent of five of the judges of the Court of Appeals, and which is commonly alluded to as the doctrine of res ipsa loquitur. It was applied in that case to the fall of an elevator from an unexplained cause, and is equally applicable here on the assumption that the duty of safe maintenance of the structure exists on defendant’s part, and certainly when coupled with the fact of no proper inspection of the machinery during a period of years. The following from Judge Cullen’s opinion (p. 196) is especially in point, viz.: “It appears that the deceased was present by the implied invitation of the defendant, extended to him and all others who might have lawful business on the premises to use the elevator as a means of proceeding from one story to another. The defendant, therefore, owed the plaintiff the duty of using at least reasonable care in seeing that the premises were safe. The death of the plaintiff’s intestate was caused by the fall of the counterbalance weights. These weights were held in a frame, to which was attached a rope or cable passing around a drum. The weights fell down from the'frame and the rope was thrown off the drum. That no such accident could ordvna/rily have occurred had the elevator machinery been in proper condition and properly operated seems to me very plain. The court was, therefore, justified in permitting the jury to infer negligence from the accident, construing, as I do, the term accident to include not only the injury but the attendant circumstances.”

In the case at bar the evidence clearly establishes the fact that the entire elevator fell when not overloaded and not in actual operation. Certainly, such a thing could not ordinarily occur if the machinery was in a safe and proper condition. The inference was, therefore, possible-that the fall was occasioned by some defect of either original construction or created by time and use, and if adopted by the" jury would necessarily point to negligence on the part of him upon whom the law imposes the burden of such reasonable care and inspection as would tend to a timely discovery and remedy of the defect.

There are other minor questions presented which are not regarded as controlling, and, therefore, demand no special discussion. The plaintiff’s exceptions should be sustained and the motion for a new trial granted, costs to abide the event.

All concurred.

Plaintiff’s exceptions sustained and motion -for a new trial granted, costs to abide the event.  