
    Hart v. Naumburgh et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 13,1888.)
    1. Master and Servant—Negligence of Master—Defective Machinery.
    The drum of defendants’ elevator was of sufficient capacity to hold the chain if wound tightly, but as it did not wind tightly it filled the drum, and slipped off on one side, tipping the elevator, and causing plaintiff, an employe of defendants, who was riding on it, to fall down the elevator hole. The defect was well known to defendants. The engineer had frequently driven the chains straight with a hammer when they wound wrong. Held, that the elevator was unsafe, and defendants were liable for the injury to plaintiff resulting from its use. Following Stringham v. Stewart, 3 N. E. Rep. 576.
    2. Same—Contributory Negligence—Question for Jury.
    The elevator was a freight elevator, and though there was a notice that it was not to be used defendants’ servants used it continually and openly, and there was evidence that plaintiff was the proper person to go up with it. He knew nothing of the danger from the uneven winding of the chain, and was told by defendants’ engineer to use it as it was. Meld, that the question of contributory negligence was properly submitted to the jury.
    3. Same—Evidence.
    Evidence that the elevator was not safe for the carriage of passengers, and had no appliances to avoid accident, was properly admitted. Following Stringham v. Stewart, 3 N. E. Rep. 570.
    Appeal from circuit court, Kings county.
    Action by Patrick Hart against Elkan Naum burgh and others for personal injuries sustained by plaintiff while in defendants’ employ through defendants’ failure to provide safe machinery. Defendants appeal from a judgment in favor of plaintiff, and from an order overruling a motion for a new trial.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Hearts, Choate & Beaman, for appellants. C. J. Patterson, for respondent.
    
      
       Respecting the duty of a master to furnish safe machinery and appliances, see Anderson v. Bennett, (Or.) 19 Pac. Rep. 765, and note; Railway Co. v. McElyea, (Tex.) 9 S. W. Rep. 313, and note; Way v. Railway Co., (Iowa,) 41 N. W. Rep. 51, and note.
    
   Barnard, P. J.

The plaintiff was an employe of the defendants. In March, 1886, he was injured by being thrown from an elevator used by the defendants in hoisting goods to and from the floors of their building in New York. The action is based upon allegations of neglect by the masters to furnish safe machinery for the use of the employe when engaged upon his employment. The injury, it is claimed, was occasioned because the elevator was out of order and unsafe. This was the only question of fact in the case, and the evidence is conflicting, not as to the fact of the accident, but as to the cause of it. The elevator was a freight elevator, and there was a notice posted that it was not to be used; but the weight of the evidence is that it continued to be used by the employes of the defendants so continuously and openly that it must be assumed that the notice was not intended for the plaintiff to heed. Indeed, there is proof tending to show that he.was an exception, and was the proper one to go up with it. The accident was occasioned by the elevator tipping so as to be at an angle of 45 degrees, causing the plaintiff to slide down the elevator hole. There was proof tending to show that when the elevator reached the bottom, for a long time previous to tlie accident, the drum on which the chains rolled up continued to revolve, thus unwinding a turn and a half of the drum, and casting the chain loose upon the ground. When the elevator was started the chains wound up irregularly instead of close. The drum was of sufficient capacity to hold the entire chains-if wound tight, but if the chains were not wound tight on the drum, they would finally fill the drum, and then go over on the shaft and then slip one side of the elevator. This result caused the accident. There was proof tending to show that after the accident the chains had got off the drum on the elevator, and, in the absence of any other proven cause, and in view of the accident itself, this must be deemed the true cause. The verdict of the jury is final upon the question. There is proof also tending to show that this defect was known to the defendants. The engineer had frequently driven the chains straight with a hammer when they wound wrong. Such an elevator is out of order and dangerous, and the case falls within Stringham v. Stewart, 100 N. Y. 516, 3 N. E. Rep. 576. The defendant could not be relieved by inspection. The elevator was safe when it worked as designed to be worked, but it failed to do so, and the masters had notice of the failure, and continued to use it. The cause is disclosed, and a remedy could easily be applied.

The question of the plaintiff’s contributory negligence was one for the jury. It is only in extreme cases where the court as matter of law determines this question. This was not such a case. The servant had the right to rely upon the performance of the duty by the master. He knew nothing of the danger from the uneven winding of the elevator chain, and he was told to use it as it was by the defendants’ engineer. Under these circumstances it was for the jury to say whether the plaintiff violated any duty in using the elevator. Kain v. Smith, 89 N. Y. 375.

The evidence that the elevator is not fit or safe to carry passengers, and had not the appliances to avoid accident, was properly admitted under the case of Stringham v. Stewart, supra. The judgment should therefore be affirmed, with costs. All concur.  