
    SUPREME COURT.
    Thomas H. Stringham agt. Cornelia M. Steuart.
    
      Negligence — Master and servant— When master not liable for injuries to a servant occasioned by the negligence of a co-employe.
    
    The plaintiff, who was a servant of defendant, was injured by the falling of an elevator used to hoist grain into a storage building. The accident was occasioned by the negligence of the engineer in charge, in allowing the elevator to be carried too high, thereby breaking the rope by which it was raised.
    
      Held, that the defendant was not liable for such neglect of a co-employe of plaintiff.
    
      Second Department, General Term, September, 1882.
    
      W. L. Whiting, for plaintiff.
    
      H. H. Rice, for defendant.
   Barnard, P. J.

The only question in this case is whether a master is bound, in furnishing machinery, to provide against the neglect and inattention of the employes who operate it. .The plaintiff was a servant of the defendant upon her farm in Queens county. The farm is very large, and in order to elevate the grain into the storage building there was provided an elevator which lifted up a car with about a ton weight of grain by means of a steam engine in a building near to the storehouse. The engineer in charge was enabled, by marks upon the belt, to stop the elevator at the proper floor. There were only six or eight inches between the top of the elevator and the pully block at the upper story when the elevator was even with the floor. The car was run from the elevator upon a tramway to the end of the storehouse. Upon the occasion of the accident the elevator was intended to deposit the car at the upper story.

For some unexplained reason the elevator stopped short of the elevation needed. It then started again, and the elevator was carried the six or eight inches too high, and the rope broke and precipitated the elevator to the bottom of the building, and injured the plaintiff severely. The cause of the accident was solely occasioned by the failure to stop the engine at the proper mark upon the belting, and thus arises the question whether the plaintiff was bound to allow more than six or eight inches for a possible neglect. It does not seem that such a principle has been established. As between master and seiwant, the master is to furnish good and suitable machinery (Cone agt. D., L. and W. R. R. Co., 81 N. Y., 206). The servant takes the risks of the machinery, if the defects are known to him or should be known to a person of ordinary intelligence in his situation in reference to the machinery (Wright agt. N. Y. Central R. R., 25 N. Y., 562 ; Gibson agt. Erie R. R. Co., 63 N. Y., 449). When the machinery is defective no action lies by the servant against the master when the injury was occasioned not by the defect of the same but by the negligence of a co-employe of the servant (Wright agt. N. Y. Central, 25 N. Y., 562). The master is not bound to furnish the best and safest known appliances for the purpose, provided the means used are safe. The sole occasion of this accident was the negligence of the engineer in not stopping the elevator. Against such negligence there can be no provision; as well continue the application of the power for feet as inches. The rope could not resist the steam engine, and was not intended to do so. The contrivance was sufficient, if properly managed, and for this neglect the defendant was not liable. The judgment should therefore be reversed and a new trial granted, costs to abide the event.

Dykman, J., concurs.  