
    Ida Starer, as Administratrix, etc., of Littmann Starer, Deceased, Respondent, v. Anton Stern, Appellant, Impleaded with Albert Tower and Others.
    
      Order setting aside a verdict — affirmed on appeal if proper, although a wrong reason, was given below — injury to an employee from the fall of a freight elevator — refusal to allow proof that a safety appliance was worn and that the appliance was not in condition to work — charge as to the duty to adopt all known methods of inspection — master not liable for any neglect in inspection of the employees of an-insurance company — delegation of duty of inspection — res ipso loquitur.
    An order setting aside a verdict and granting a new trial must be affirmed on. appeal if it is sustainable upon any ground, even though the ground assigned, by the trial judge be untenable.
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, an employee of the defendant, who, while riding as a passenger-in a freight elevator operated under the direction and supervision of the-, defendant, was killed in consequence of the falling of the elevator, it appeared that the elevator was being operated with due. care at the time of the accident, and the cause of its falling was not established. It also appeared that the elevator was fitted with two appliances which were designed to prevent it from. ' falling; that one of these appliances was known as a spring safety device, which, in the event of the breaking of the elevator cable, would stop the elevator by imbedding teeth in the wooden guide post on either side of the elevator. The other was known as the slack cable device, and consisted of a. lever so located that if the cable became dangerously slack it would strike the-lever, which, in turn, would cut off the power. Neither of these safety appliances worked upon the occasion of the accident.
    
      Held, that it was improper for the court to refuse to allow the plaintiff, who had. shown that some of the teeth in the cam in the spring safety device were missing and that others had been worn, to ask an expert called by him as to what, was the least amount of time it would take to produce this condition if the cam were subjected to the greatest amount of use and wear and tear, and whether such condition could have been produced by the fall of the elevator-on the occasion of the accident;
    That the expert’s testimony, if admitted, might have shown that the cam must have been in use for a long period, and that the wearing away of the teeth, from ordinary use would be very gradual and indicate that such worn condition might have been discovered and repaired prior to the accident;
    That it was also improper to refuse to allow a witness sworn on behalf of the= plaintiff, who saw a piece of wood on the elevator machinery thirty minutes-■after the accident, to point out the location of such piece of wood on a model of the machinery which was present in court;
    That testimony having been given from which the jury could infer that the-elevator machinery remained in the same condition for a long time after the accident, it was improper to allow a witness, who examined the machinery .some four days after the acci.dent, to testify whether or not he then found a wrench or block of wood under the slack cable device, it having been shown by an expert that this might have prevented the safety device from'working;
    That several experts sworn on the subject of inspection having differed merely with reference to the sufficiency and thoroughness of the inspection which was necessary, and not having testified to several different systems of inspection ■any one of which would be alone sufficient, it could not be said, as matter of law, that the jury would not be justified in finding that the inspection to be •sufficient under all the circumstances should have been as complete as required by the testimony of any or all of the experts, but that that question was a question which should have been left to the jury to determine;
    That, consequently, it was improper for the court to charge that the defendant could not be held liable for his failure to adopt all the methods of inspection testified to by the experts;
    That the court properly instructed the jury that the defendant was not liable for any negligence, in the inspection of the elevator, of which the company insuring the elevator or the employees of that company were guilty;
    That the defendant, however, could not delegate the duty of inspection to an independent contractor or to an employee and was, therefore, liable for such defects in the elevator as would have been discovered by a proper inspection thereof;
    That the court properly instructed the jury that the mere happening of tie accident did not, in this case, justify an inference of negligence on the part of the defendant under the doctrine of res ipso loquitur.
    
    Appeal by the defendant. Anton Stern, from an order of the .Supreme Court, made at the New York Trial Term and entered in the office of .the cleik of the county of New York on the 9th day •of July, 1903, setting aside a verdict theretofore rendered in favor •of the said defendant and granting a new trial of the action.
    
      Frank Verner Johnson, for the appellant.
    
      Charles Goldzier, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of Littmann Starer by the fall of an elevator. The appellant was the lessee of two floors of tlie building known as No. 691 Broadway in the city •of New York and ■ conducted therein the business of making clothing. There were two elevators in the building, a passenger elevator in front and a freight elevator in the rear. The decedent was in the employ of the appellant as a piece worker, doing his work, however, upon the premises. On the day in question he came to the premises either for the purpose of working or inquiring whether further work for him was ready and was riding up in the freight elevator. It was shown by the testimony of the elevator operator that he' started in the usual way and was exercising due care, but that after the elevator had ascended several stories it suddenly fell and grounded, inflicting injuries upon the decedent which resulted in his death. Pursuant to an arrangement between the appellant and other tenants of the building the elevator was operated for their mutual convenience and benefit, but under the direction and supervision of the appellant who hired the operator. Evidence was adduced in behalf of the plaintiff tending to show that the employees ■of the appellant to his knowledge and by his direction had. for a long time been accustomed to use this freight elevator in going to and from their work, and that in the morning and at the close of the day the elevator was used for quite a period of time almost •exclusively in carrying employees up and down. On the part of the •appellant it was shown that there was a sign on the elevator, placed there by the elevator insurance company, forbidding the use of the elevator by passengers ; that there was a stairway in the immediate vicinity of the elevator leading to the different floors and that he had given the elevator boy instructions not to carry employees.'

It appeared that this elevator had been equipped with two appliances designed to prevent accidents such as happened. The one is known as a spring safety device which, if in proper working order, will stop the fall of the elevator in the event of the breaking of a cable or any considerable slacking thereof by imbedding teeth in the wooden guide posts on either side of the elevator. _ The other is known as a slack cable device, which is situate in the cellar at the bottom of the elevator just under the drum around which the cable winds. This device consists of a lever so located that if the cable became slack to such an extent as to endanger its getting off the drum, it would touch this lever, and its weight would lower the lever a little, which, through mechanical devices, would result in shutting off the power, and, if the cables were intact, this would stop the elevator wherever it happened to be.

Neither of these safety devices worked upon this occasion. After the accident the cables were found broken and wound around the-drum, the power being still on and the drum revolving. There was evidence from which the inference might be drawn that this was-caused by a slack cable which got off the drum without striking the= lever and throwing off the . power, and then became entangled in the"'rapidly moving machinery; and there was also evidence that, some of the teeth of the spring safety device were worn and that others “ were off ” entirely.

The learned justice who presided at the trial tiled an elaborate-opinion on granting the motion for a new trial, assigning as his reason therefor that the doctrine of res ipso loquitur was applicable- and that he had not so instructed the jury. . The rule in such case is, however, that the order must be affirmed if it be sustainable upon any ground, even though the ground assigned by the trial judge be untenable. '

We are of opinion that this order should be affirmed. Aside from the question of the application of the maxim .res ipso loquitur there are .other exceptions taken by the plaintiff which required the granting of a new trial. After showing that some of the teeth in. the cam in the spring safety device were off altogether and that others had been worn, an expert called by the plaintiff was asked, the least amount of time it would take to produce this, condition, if the cam was subjected to the greatest amount of use and wear" and tear; and also whether that condition could have been produced by the fall of the elevator on this occasion.' These questions were, objected to, as immaterial, irrelevant and incompetent. The objections were sustained and the plaintiff excepted. We are of opinion that this was error. The testimony if admitted might have shown that the cam must have been in use for a long period and that the wearing away of the teeth 'from ordinary use would be very gradual which would indicate that it might -have. been discovered and repaired before they became , so-worn.as to be useless. Other evidence tending to show how these safety devices operate when in order and how tlíe cables may be affected by the manner in which the elevator is operated was likewise erroneously excluded. A witness who went down in the cellar from fifteen to twenty-five or thirty minutes after the accident and looked at the machinery and saw a piece of wood there, the location of which he said he was able to point out on a model of the machinery in court, was asked to point -out its location. This was objected to, excluded and counsel for plaintiff excepted. Evidence was given from which the jury might well infer that the machinery remained in the same condition for & long time after the accident. Another witness, who examined the machinery some four days after the accident, was asked if he did not find a wrench or block of wood under the slack cable device. This was objected to, excluded,.and counsel for the plaintiff excepted. It was shown by an expert that if the lever were blocked up with a piece of wood, or otherwise, that would prevent the slack cable device from working, and this was manifest without such testimony. •We are of opinion that the exclusion of this evidence was error. It might have accounted for the failure of the slack cable device to work. If the lever were blocked up, the appellant might not have •Reen responsible for the act originally, but that would depend upon who did it and his relation to the appellant. At any rate it was a step in the proof essential to hold the appellant for neglect to properly inspect and keep in repair.

At the request of counsel for the defendant the court held that the appellant could not be held liable for his failure to adopt all the methods of inspection testified to by the experts, and counsel for the plaintiff duly excepted. The testimony of the experts did not relate to several independent systems of inspection, any one of which would be alone sufficient. They differed merely with reference to the sufficiency and thoroughness of the inspection. It could not be said as matter of law that the jury would not be justified in finding that the inspection to be sufficient under all the circumstances should'have been as complete as required by the testimony of any or all the experts. This was a question which should not have been disposed of as matter of law, but should have been left to the jury. (Young v. Mason Stable Co. (Ltd.), 96 App. Div. 305; Palmer v. D. & H. Canal Co., 120 N. Y. 170, 176; Stott v. Churchill, 15 Misc. Rep. 80; affd., 157 N. Y. 692,) The jury were properly instructed that the appellant was not liable for any negligence on the part of the elevator insurance company or its employees in inspecting the elevator; but they were not specifically instructed that it was the duty of the appellant to inspect it, and that he could not avoid liability on the theory that he had delegated that duty either to an independént contractor or to an employee. The rule is firmly established that the duty ■ of inspection cannot be delegated so as to relieve the master of liability; He is, therefore, liable for such defects as would have been discovered by a proper inspection. ;

On the question as to whether the doctrine of res ipso loquitur is applicable to the case of án employee -using á freight elevator,, which falls.without any apparent cause, there is some conflict in the decisions. In such case it is to be borne in mind that in' no event-could the doctrine be applicable until it is affirmatively shown that the fall was not due to- negligence on the part of the operator, or the enginéer or fireman, who would ordinarily be coservants. Moreover, in an action by á servant, against his master, the law presumes that the master has performed Ms full duty. Merely showing that such an elevator, while bfeing operated with care, fell is not sufficient to -overcome' the presumption that tlie master has performed his duty and to cast upon him the burden of explaining the cause of the accident. The court, therefore, properly instructed- the jury that the mere happening of this accident would not justify the-inference of negligence and the exception thereto presents no.error. So far as the difficulty of making proof of the precise cause of an accident is concerned, it is no greater burden to a servant to discover ■ such" evidence in the case of an elevator than in many, other-instances where it is well settled that he must make such proof. The ordinary rule is that the servant must show that the machinery 01-appliance which caused the accident was defective or' out of repaii- and that this condition existed for such a length of time that if the-master had performed his duty of inspection it would have been discovered and remedied. I do not Understand the rule of law* to béthat if a locomotive engineer, for instance, is injured by the spreading of the rails or the breaking of a rail, or even the falling of a. bridge, this itself gives rise to the presumption that the .master has not properly performed his duty of properly constructing, inspecting and repairing. I think that- the .employee must go further and give other evidence tó establish negligence. (Warner v. Erie Ry. Co., 39 N. Y. 468.)

In the case of Stackpole v. Wray (99 App. Div. 262) and former-decision to same effect (74 id. 310), this court recently held that the-, doctrine is not applicable in an action by a.servant against his master for an injury sustained by the falling of a freight elevator. The only difference I discover between the facts of that case and this is-that there the elevator evidently was used only for carrying freight and those employed in handling the freight, but these facts do not distinguish it in principle. It has been held that the rule of res ijpsa loquitur does not apply to the collapse of a.derrick or the falling of part of a derrick by which an employee is -injured. (Dougherty v. Milliken, 163 N. Y. 527; Welsh v. Cornell, 168 id. 508.) I see no difference in principle between the injury of an employee by the fall of an elevator used in carrying employees above ground and an injury to an employee by the fall of a bucket, used to lower and elevate employees several hundred feet underground, and in the latter case the doctrine has been declared inapplicable. (Dobbins v. Brown, 119 N. Y. 188.) There are other-precedents directly in point necessarily, if not expressly, holding-that the doctrine does not obtain in an action by an employee for injuries caused by the, fall of a freight elevator. (Moran v. Racine Wagon Co., 74 Hun, 454; Hart v. Naumburg, 123 N. Y. 641. See, also, Ingram v. Fosburgh, 73 App. Div. 129; Biddiscomb v. Cameron, 35 id. 561; affd., 161 N. Y. 637; Bucher v. Pryibil, 19 App. Div. 126; Fink v. Slade, 66 id. 105.)

We are of opinion, therefore, that a new trial should not have been granted upon the ground assigned in the opinion of the learned trial justice, but it was justified and required by other errors, and the order should be affirmed, with costs to respondent to abide the event.

■ Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; Hatch, J., concurred in result.

Order affirmed, with costs to respondent to abide event.  