
    Eliza Sullivan, as Administratrix, etc., of Edward Sullivan, Deceased, Respondent, v. Greenhut-Siegel, Cooper Company, Appellant.
    Second Department,
    February 21, 1913.
    Master and servant—negligence—Employers’ Liability Act — “ way ” — employee struck by wagon not properly placed upon freight elevator — evidence — new trial.
    In an action under the Employers’ Liability Act to recover for the death of plaintiff’s intestate it appeared that the defendant maintained a freight elevator for the purpose of carrying wagons to upper floors; that after placing a wagon upon the elevator it was customary to strap up the shafts so as to prevent them from, coming in contact with the wall of the building, and also to place a block behind one of the rear wheels of the wagon to keep it from moving backwards; that at the time the decedent, an employee of the defendant, was injured, when the elevator upon which the wagon had been placed had ascended to five feet the shafts fell and came in contact with the wall, causing the wagon to move back on the platform and strike the decedent, who was standing behind with his back towards the rear of the wagon, and that it fell on him, causing his death.
    Evidence examined, and held, that the condition of the elevator, together with the wagon thereon at the time of the accident, constituted a defect in a “ way ” within the meaning of the Employers’ Liability Act;
    That the evidence was sufficient to establish the negligence of the defendant in placing the wagon upon the elevator and that an order denying defendant’s motion for a new trial should be affirmed.
    Appeal by the defendant, the Greenhut-Siegel Cooper Company, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 16th day of May, 1912, denying the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff for $3,700, and for a new trial.
    
      Theodore H. Lord [Lyman A. Spalding with him on the brief], for the appellant.
    
      Philip Cohen, for the respondent.
   Carr, J.:

Plaintiff has recovered a judgment against the defendant entered upon the verdict of a jury in an action brought by her to recover damages for the death of her decedent through the alleged negligence of the defendant. The. action was brought under the Employers’ Liability Act as in effect on January 21, 1911, the date of the accident. (See Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352.) The decedent was in the employment of the defendant as a harness maker at work in a large stable maintained by the defendant. In one comer of the stable was. a large freight elevator which carried wagons up and down, and other property of the defendant, and which had been used by employees without interference for the purpose of going to and from their work on the various floors of the building. At the time the decedent was injured, a single delivery wagon of the ordinary type, covered with a top, had been placed upon the freight elevator to' be taken to the upper part of the building. This wagon was placed upon the platform of the elevator, and its shafts or thills lifted up. When the elevator had ascended about five feet or more the shafts fell and came in contact with a side of the wall; this caused the wagon to go back on the platform and to strike the decedent, who was standing behind with his back towards the rear of the wagon. It fell over on him, causing him physical injuries which resulted in his death. The plaintiff proved that it was the duty of the elevatorman to strap up the shafts, so as to prevent them from coming in contact with the wall of the building as the elevator ascended, and likewise to place a block behind one of the rear wheels of the wagon to keep it from moving backwards. The witness Hanlon, who testified in favor of the plaintiff, was an elevator-man in the stable. At lunch hour he had been relieved from duty, and one Gaswich took his place. The accident took place just after Hanlon returned to the stable, and he is the only eye-witness to its occurrence who was produced on the part of the plaintiff. He testified that when he left for lunch and turned the elevator over to Gaswich, the ordinary block was on the platform of the elevator, and he further testified that the usual strap for tying up the shafts of the wagon was present on the wagon. He saw Gaswich put up the shafts, but he did not see whether Gaswich secured them with the strap nor did he see whether the block had been placed behind one of the rear wheels. Gaswich was called by the defendant, testified that he had secured the shafts with the strap in question and had placed the block behind one of the rear wheels of the wagon, and he attempted to attribute the happening of the accident to the fact that the decedent was standing at the rear of the wagon with his back against it, and must have pushed it forward, thus causing the shafts to strike the side of the wall of the building. There seems to be no question that it was the duty of the elevatorman to take the necessary precautions in relation to the wagon before moving the elevator upwards, and that the usual appliances of the strap and block were present and available. If Gaswich failed to use these appliances, then his negligence was that of a fellow-servant in a detail of the work, and plaintiff cannot recover unless under the provisions of the statute in question. The plaintiff claims that the elevator was a “way,” and that it was defective in that at the time of its ascension, when the accident occurred, it was actually unsafe by reason of the condition of the wagon which had been placed thereon. The learned trial court submitted the case to the jury on this theory, leaving only for the determination of that body the question whether Gaswich had actually strapped up the shafts properly and also placed the block behind the rear wheels in accordance with the usual custom. He expressly charged the jury that, if they should find that the shafts had been properly strapped up and the block placed behind the rear wheel of the wagon, then they should find a verdict for the defendant. The chief question, therefore, involved on this appeal is whether the condition of the elevator, together with the wagon, at the time of the occurrence of the accident, was such as to constitute a defect in the “ways” within the meaning of the statute. The learned trial court was of opinion that the case before him was analogous to that of Heske v. Samuelson & Co. (L. R. 12 Q. B. Div. 30). There is, however, a very substantial difference in the facts presented in the case just cited and those shown in the evidence in the case at bar. In that case there was a lift or elevator, consisting of two separate platforms, which were used for the carriage of coke to the top of a furnace some eighty-five feet above the ground. The platforms, of the lift ascended or descended alternately. One platform was ascending filled with barrows of coke, and the other platform was at the ground level being filled with barrows of coke. One of the employees while working on the platform, which was at the ground level, was struck by coke which fell from the platform which was ascending. It was held that the elevator was so constructed as to be unsuitable for the use to which it was put, in that there was a failure to so protect the sides of the ascending platform that no coke should fall from it down upon men working below, or to so roof the platforms that if coke should fall it could not strike those who were working below at the ground level. The principle of decision, however, was that a “defect” in the “way,” within the meaning of the statute, could exist in the “way,” though mechanically perfect, if it was not suitable to the use to which it was put when considered in the light of the reasonable safety of those obliged to use it or at work near by it. (Lipstein v. Provident Loan Society, 154 App. Div. 732.)

In considering the elevator here in question, the mechanism itself is not to be considered alone. It was intended to carry loads, and at the time of the accident was carrying a load. If it was loaded in such a manner as to create a danger in its operation, then it became for the time being a defective “ way.” The duty of preventing or remedying a defect in the way was primarily an obligation of the master which could not be so delegated as to relieve the master from responsibility. Hence if, on the occasion in question, the wagon was placed negligently on the platform of the elevator, the negligence, though in fact that of one in the common employment, was in law the negligence of the master itself. There was ample evidence from which a negligent placing of the load upon the elevator might be inferred by the jury, hi or should such a finding by the jury be deemed against the weight of evidence, though Gaswich, the elevator operator, testified to a state of facts tending to show a proper performance of his duty. As the case stood, the negligence claimed by the plaintiff was in fact that of Gaswich and in law that of the defendant also. Hence Gaswich was as a witness vitally interested, for his personal conduct was involved in the controversy. Of course the jury could not find an affirmative by simply rejecting the testimony of Graswich, but such is not the case at bar.

The order denying motion for a new trial should be affirmed, with costs.

Present — Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Order unanimously affirmed, with costs.  