
    John Smidt, Respondent, v. Buffalo Cold Storage Company, Appellant.
    Fourth Department,
    November 12, 1913.
    Master and servant —negligence —injury through negligence of competent fellow-servant — assumption of risk.
    In an action at common law by an employee to recover for injuries sustained while working at the bottom of an elevator shaft in the defendant’s warehouse, by the lowering of an elevator without warning, it appeared that an intelligent and competent coemployee, who had been instructed by the defendant not to permit the elevator to be lowered, left his post of duty, and during his absence another employee, ignorant of plaintiff’s dangerous position, entered the elevator and lowered it.
    Held, that the plaintiff, knowing the nature of the precautions taken by the defendant for his safety, and understanding the operation of the elevator, assumed the risk and cannot recover for the negligence of his fellow-servant.
    Krusb, P. J., dissented, with memorandum.
    Appeal by the defendant, the Buffalo Cold Storage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 28th day of February, 1913, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Kimball & Stowe [Franklin D. L. Stowe of counsel], for the appellant.
    
      Aaron Fybush [Frank C. Ferguson of counsel], for the respondent.
   Merrell, J.:

This action is brought by the plaintiff to recover of the defendant damages which he claims to have sustained by reason of defendant’s negligence. The action has twice been tried, the first trial resulting in a verdict in favor of plaintiff for the sum of $6,500. Judgment thereon was reversed on appeal to this court and a- new trial ordered. (149 App. Div. 934.) Upon the second trial a verdict was rendered in favor of the plaintiff and against the defendant for the sum of $10,000. This appeal is from the judgment entered upon said last-mentioned verdict. On the last trial the case was submitted to the jury as a common-law action and not under the Employers Liability Act. The facts, briefly, are as follows:

On July 8, 1910, the plaintiff, an employee of defendant at its cold storage plant in Buffalo, was working in an elevator shaft in one of defendant’s warehouses. The particular warehouse in which plaintiff was employed was of comparatively recent construction, having been built about two years. The elevator in question had been in use only about three months-. On the day in question, plaintiff, with several fellow-workmen, was engaged in installing a door leading from the basement into the elevator shaft. The door was heavy, being of refrigerator construction, and required the services of a number of men. The principal part of the work of setting up this door was accomplished during the forenoon, and at the time the plaintiff and his fellow-workmen left for their luncheon at noon practically all that remained for them to do was to lift the door, which had been attached by its hinges to the frame, and place the whole structure in an upright position in the opening between the basement and the elevator shaft. To insure the safety of those employed in the shaft, including plaintiff, one Sanders, who seems to have been in charge of the work, placed an employee, Bernhardt, on the first floor at the elevator, with full and explicit instructions to see to it that the elevator was not operated down into the basement by any one while the work was in progress and the men were in the shaft. Bernhardt was a competent and trustworthy employee of a year’s connection with the concern. It had been his principal duty to operate the elevator between the different floors of the establishment for carrying freight and packages. The instructions given him were repeated several times and were heard and understood by the plaintiff, the plaintiff testifying that he heard Sanders tell Bernhardt, the elevatorman, not to let any one run the elevator down; that while he was not familiar with much of the English language, he understood that, and that he heard Bernhardt reply, “All right.” Plaintiff also testified that he heard Sanders tell the elevatorman this before dinner and once after; that he heard him tell him twice; that he heard Sanders say to Bernhardt, “ Don’t let anyone run the elevator down.” Sanders testified upon the trial of his repetition several times to Bernhardt of such explicit instructions.

Upon the return of the plaintiff and his fellow-workmen after luncheon on the day he was injured, he, with two others, first went inside the elevator shaft and the door was placed upright in the opening. Sanders and another coemployee of plaintiff, who had been with him inside the elevator shaft, then by means of a ladder climbed out upon the first floor, leaving plaintiff inside the shaft to wedge up the structure while they went outside and fastened it securely. Sanders testified that as he came up out of the shaft preparatory to descending into the basement on the outside, he saw Bernhardt, and that he was standing right by the shaft and had been looking down; that he said to him that there was still a man down in the shaft, and that he must be very careful and let no one run the elevator down, because plaintiff had no way to get out, because they were going to put the door in the opening; that Bernhardt replied, “ All right, I will watch it; ” that Sanders then left him right there by the elevator shaft right by the door and descended into the basement.

For some unexplained reason Bernhardt does not seem to have been faithful to his trust and upon some pretext left his post of duty and during his absence another employee, ignorant of plaintiff’s position, entered the elevator and descended with it upon plaintiff, causing him serious injury.

The elevator was operated by means of electricity, and by a cable it was within the power of Bernhardt, as he stood at his post where Sanders left him, to immediately stop the elevator, if any attempt was made to move it.

It is claimed on the part of plaintiff that defendant did not discharge its full duty to plaintiff in the premises, and that either the power should have been turned off or some mechanical means provided to block the elevator while the plaintiff was in the dangerous position at the bottom of the shaft. I am unable to adopt this view or to understand how the defendant can justly be held hable for plaintiff’s unfortunate accident. It seems to me that the defendant, when it placed Bernhardt, concededly an intelligent and competent man, in charge of the elevator, with explicit directions repeatedly given him not to permit the elevator to be lowered, he then understanding fully the operation of the car and being in a position to control it at all times, discharged its full duty toward the plaintiff. Ho question is raised' as to Bernhardt’s competency or qualifications for the work. He had always proven reliable and he was thoroughly familiar with the operation of the car. Had he attended to his duty and obeyed his instructions, plaintiff would not have been injured. It seems to me that the precaution that the defendant took was that which a reasonably prudent person would naturally take. All that the defendant was called upon to do was to exercise reasonable care for the protection of its employees. It is very easy to look back, now that Bernhardt disobeyed his instructions, and say how plaintiff might have been protected. It probably was within the power of the defendant to build a false work within the shaft or otherwise block the car so that it would be impossible to lower it. Indeed, it might have removed the car itself from the shaft, but it would not be required in the exercise of ordinary care to do that. Plaintiff’s injury was the direct result of the carelessness of a competent fellow-servant, and it seems to me that plaintiff, knowing fully the nature of the precautions taken by defendant for his safety, clearly understanding that the operation of the car was to be stopped by the placing, of Bernhardt on watch, engaging in the work that he did, assumed the risk of his employment.

Plaintiff’s suggestion that prudence would have led defendant to disconnect the current by the switching device in the penthouse at the top of the elevator shaft, and so stop, the operation of the car during the prosecution of the work in the shaft is hardly reasonable. The device mentioned was an automatic contrivance whereby, in case of accident, automatically the car was stopped. According to the testimony it never was used for the purpose suggested, and it would appear that in attempting to switch off the current in that manner grave danger would be encountered.

As before stated, it seems to me that the master in this case discharged its whole duty to the plaintiff by placing Bernhardt on watch. It is not the master’s duty to furnish its employees with an absolutely safe place to work. He is only called upon to use reasonable care and prudence in supplying such a place. (Harley v. B. C. M. Co., 142 N. Y. 34.)

To. place upon the master a greater duty would be to compel him to insure the safety of his employees. (Butler v. Townsend, 126 N. Y. 105; Sheridan v. Interborough Rapid T. Co., 101 App. Div. 535; Wootten v. Flatbush Gas Co., 102 id. 294.)

In submitting the case at bar to the jury the court used this language: “ Under ordinary circumstances, the master has performed his duty when he has furnished proper equipment, competent men to opérate it and proper safeguards against accident in the ordinary operation of the machinery. But it is urged here that the circumstances were extraordinary.”

It would appear that it was upon the theory that the circumstances here were extraordinary that led the court to submit the case to the jury.

It does not seem to me that the fact that the warehouse was in some respects incomplete, particularly that the door in question was being erected, is sufficient to authorize the jury to find that the circumstances concerning this accident were extraordinary.

The position in which plaintiff was placed differed in no degree in the danger to him than as though he had been called into the elevator shaft on other duties than construction work. So far as the car was concerned it was complete and it had been in operation for some months. While plaintiff was engaged in installing the door in question he was in no more danger than as though he had entered the shaft to clean it or upon some other errand. He would have been in a like dangerous position in either case, and his danger was in nowise increased because of the fact that he was engaged in new construction.

It seems to me the case at bar is in principle like the recent decision of Kennedy v. Wanamaker (145 App. Div. 428; affd. without opinion, 207 N. Y. 724). In that case the employee was sent into the elevator shaft for the purpose of cleaning it. The man charged with the duty of operating the car was told by the employee before he entered the shaft that he was about to do so for the purpose of cleaning it in the basement and directed such operator to post the usual notices, “ Elevator not running,” and the elevator was brought to a stop at the first floor, as it was the duty of the operator, according to custom, to hold it until notified by the man in the shaft that his work below had been completed. The operator disregarded this instruction, shot his elevator to the sixth floor, causing the counter-weights to descend and injure the man in the shaft. The court held in that case that the provisions for the operative’s safety were sufficient and that he assumed the risk of the negligence of the operator; that he was as fully acquainted with the manner in which the work was done and knew the danger quite as well as his employer.

The testimony shows in the case at bar that Smidt clearly understood the method which had been adopted for his protection.

The Wanamaker case, it seems to me, is directly in point, and the court there held that the negligence which caused the injury was that of a competent coemployee and that such negligence on his part was assumed by the plaintiff. I think the same applies to the case at bar, and am, therefore, of the opinion that under well-settled law the plaintiff cannot recover and that the judgment and order of the court below should he reversed and a new trial ordered, with costs to abide the event.

All concurred, except Kruse, P. J., who dissented in a memorandum.

Kruse, P. J. (dissenting):

The plaintiff has succeeded twice before a jury and in each instance the trial judge has permitted the verdict to stand. Upon the first appeal to this court it was held that prejudicial error had been committed in admitting testimony, not that the defendant had as a matter of law fuhy performed its duty to the plaintiff, as seems to be held in the prevailing opinion. The question relating to evidence is not now in the case. The other question was in the case upon the first appeal and is here now. It is now proposed to hold that there is no liability at all. I cannot take that view of the case.

The plaintiff was set at work to help the carpenter in the work of putting doors in the elevator' shaft, at the bottom of the shaft. It was not the work of a moment. The two men. had worked a good part of the forenoon and were continuing their work in the afternoon, when the accident occurred. The foreman knew that the men were required to work in the shaft, and that they would be in dangor if the elevator came down. He also knew that if the elevator met with an obstruction in its downward course, it would stop and automatically turn off the power so that it could not be moved up or down until the power was again made éffective. That was just what happened upon this occasion, when the elevator came down upon the plaintiff. When the progress of the elevator was sufficiently arrested by coming in contact with the plaintiff to turn off the power, it stopped, holding him and crushing him, until the power was again applied. From what the foreman told Bernhardt, who is called the elevatorman, the inference is sought to be drawn that the elevator was not to be moved at all while the work below was- in progress, and that Bernhardt was expected to stay there all the time and do nothing else but to see that the elevator was not moved. That was not what the foreman told Bernhardt, and I think the inference is quite to the contrary. If it was intended that the elevator should not be operated from the time the men commenced work until they had completed their job, it hardly seems reasonable that a man would be stationed at the elevator, whose only duty was to watch it and prevent its being moved, when that could be accomplished by simply turning off the power. It would have taken but a few moments to have turned off the power, and then, as the foreman himself testifies, the elevator could not have been operated and would have been entirely safe.That, I think, the jury was warranted in finding should have been done in the exercise of reasonable prudence and with due regard for the safety of the men below, and for any neglect of duty in that regard the defendant is liable, since it was the duty of the defendant to adopt a method reasonably adequate to prevent the elevator from being operated and injuring the plaintiff while he was engaged in this perilous work. That duty the defendant could not delegate to either the foreman or Bernhardt or any other subordinate and escape liability for want of care in that regard. I assume that was what' the learned trial judge had in mind in charging the jury that in operating the elevator Bernhardt was not an employee but performing the duty of a master. Perhaps that statement was too broad, but the grotmds of liability as finally stated leave the defendant, I think, without cause for complaint.

Defendant’s counsel also requested the court to charge that if the accident was caused by the negligence of Bernhardt in failing to carry out his instructions, and those instructions were adequate, then the accident was caused by the negligence of a fellow-servant and the plaintiff could not recover. While that request was refused, I think the error, if any, was cured by subsequently leaving the question to the jury as to whether the means adopted to prevent the accident and protect the plaintiff working in the shaft were reasonably adequate.

I, therefore, reach the conclusion that the judgment and order should be affirmed.

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