
    MARGARETTA SCHAPPERT, as Administratrix, &c., Plaintiff and Respondent, v. GEORGE RINGLER, et al., Defendants and Appellants.
    Before Sedgwick and Freedman, JJ.
    
      Decided November 3, 1879.
    Negligence resulting in death.
    The plaintiff is bound to show, affirmatively, that the intestate did not contribute to the result, and that the defendant’s negligence was the sole cause.
    In this case, before any request to charge had been made, the court said to the jury:
    “If you find, from the-testimony, that- this unfortunate man contributed, in any way, by his own act, to the accident which resulted in his death, the plaintiff cannot recover. But of that you must be satisfied. Ton must set your hand upon something that is sworn to in evidence here.” And again:
    “If you put your bands upon anything, and satisfy yourselves that he has done something, by his own acts, by which he has lost his life, then the plaintiff cannot recover.”
    The defendants’ counsel excepted to these propositions charged, and requested the court to charge, “that if the jury believe, from the evidence, that any act of Louis Schappert aided or contributed towards his injury, then the defendants are not liable. Plaintiff must prove, to the satisfaction of the jury, that Schappert was entirely free from fault. ”
    This request was denied, and exception taken. Held, by the court, that these exceptions were well taken, and there should be a new trial.
    Appeal from judgment on verdict in favor of plaintiff.
    The complaint charged that defendant’s negligence caused the death of plaintiff’s intestate, and claimed damage thereupon, to the next of kin.
    The circumstances of the death were as follows: The defendants owned and did business in a brewery in which was an elevator, that was worked from the cellar floor to the highest floor. They had contracted, with one Everspacher, that he should build for them an ice-house in the brewery. The intestate was in the employment of Everspacher. In performing his contract, Everspacher directed the intestate and other laborers to remove from the cellar, dirt and rubbish there. On the day of the occurrence in question', as one of the defendants testified, Everspacher asked me “if he could have that elevator for hoisting out his dirt and stuff, when I was not using it, and I told him he could have it when I was not using it, and I would give him my engineer or foreman to run the elevator for him.” On that day, the defendant “ran the elevator himself” until 12 o’clock, and afterwards the defendants’ foreman ran it. In the afternoon, the deceased with other laborers shoveled upon the platform of the elevator dirt from the cellar. On a signal, defendants’ foreman, who was in charge of the engine that worked the elevator, set it in motion, and the platform was raised to the street floor. There was evidence that the deceased remained on the platform while it was raised.. He and the other laborers began to shovel the dirt from the platform. It took some time to remove it all. According to the testimony of the defendants’ foreman, he left the engine as soon as it reached the street, and went to another part of the brewery, not returning to the engine until after the accident. There was a conflict of testimony as to whether the workmen had removed all the dirt before the platform moved again. The testimony for plaintiff was, that it had not been removed ; that for defendant was that the platform was clear of dirt. The defendant, sworn, testified “after the dirt was removed, I heard Schapper (the intestate) hallooing to lower the elevator. I told him just wait a minute, until the engineer or foreman was coming, that I had not got time.” The witness was then fifteen or twenty feet from the platform. He >moved, as he swore, some distance away, and two or three minutes after, heard the elevator fall. He swore that he told Schappert to wait until the engineer or foreman came in.
    The testimony tended to show that while the intestate and the others were on the platform, it was suddenly'raised to the top of the elevator, and, the fastenings breaking, immediately fell to the cellar floor, thereby inflicting injuries which caused the death of intestate. No testimony whatever was given to show what caused the platform to be set in motion.
    The testimony also tended strongly to show that the defendants had often forbidden the intestate to go up or down on the platform, directing him to use the stairs.
    The jury found for the plaintiff.
    
      Daily & Machin, and Henry Daily, Jr., for appellants.
    
      Ernest Hall, for respondent.
   By the Court.—Sedgwick, J.

The defendants’ own evidence affirmatively proved that, so far as the working of the elevator went, the defendants were to control it. They told their contractor that they would give the engineer or foreman to run the elevator. This engineer or foreman was to be, as the whole case showed, under the command or at the bidding of the defendants. There was no agreement or understanding that the contractor should see to the proper running of the machine. The fact was, that while the elevator was in use, the engine attached to it was not in charge of the engineer or foreman, or, so far as the testimony directly showed, of any person. If these things were not incontrovertibly proved by the testimony, the plaintiff was entitled to have the verdict of the jury as to their existence. If they did exist, there was a duty on the defendants to the plaintiff, to use diligence in setting the engine in work properly, and in seeing that it should not be set in motion improperly.

Coughtry v. The Globe Woolen Company, 56 N. Y. 124, is in point. Accordingly the learned court below was correct in leaving to the jury, as it did, the question of defendants’ negligence.

But I think the defendants had a right to have charged, a request that their counsel made on the subject of the intestate’s contributory neglegence. The case did not explicitly show that the deceased was free from neglegence. Without adverting to whether the evidence admitted of an inference that the intestate himself was the cause of motion being applied to the elevator, there was sufficient to call for the jury’s verdict on the point, w'hether the plaintiff did not negligently remain on the platform after it was cleared of dirt, when ordinary prudent attention to his known duties required him to leave the platform and go to the cellar by the stairs. On the trial it was assumed that there was a question for the jury as to plaintiff’s contributory negligence.

As to this, before, the request referred to was made, the court had said : “ If you find from the testimony that this unfortunate man contributed in any way, by his own act, to the accident which resulted in his death, the plaintiff cannot recover. But of that you must be satisfied. You must set your hand upon something that is sworn to in evidence here.” And again : “If you put yoqr hands upon anything, and satisfy yourselves that he has done something by his own acts, by which he has lost his life, then the plaintiff cannot recover.” The defendants’ counsel excepted to these propositions, and requested the court to charge that “if the jury believe from the evidence that any act of Louis Schappert aided or contributed towards his injuries, then the defendants are not liable. Plaintiff must prove to the satisfaction of the jury, that Schappert was entirely free from fault.” This last sentence no doubt was to be understood as referring to any fault that contributed to the cause of the injury. The request was denied, and exception was taken. It seems to me that, inadvertently, the jury received the impression that on this point they should find for plaintiff, unless there was some proof that the intestate contributed by his own negligence to the result. But, in such cases, the plaintiff is bound to show that the intestate did not contribute to the result. In substance, he is held to show affirmatively that the defendant’s negligence was the sole cause. If there were no proof of any act of contributory negligence, and yet the whole case did not show that there was no contributory negligence, the plaintiff cannot recover.

For this reason, I think there should be a new trial.

Judgment reversed, verdict set aside, and a new trial ordered, with costs of this appeal to appellant to abide event.

Freedman, J., concurred.  