
    Joseph C. Young, Respondent, v. Mason Stable Company, Limited, Appellant.
    
      JSTegligence—injury from the fall of a freight elevator—obligation Of the person maintaining the elevator—res ipsa loquitur — when a question for the jury under all the circumstances — effect of the employment, to make repairs, of a practical, mechamic in such work, not a skilled engineer—evidence that after the accident two clamps were substituted for one.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the defendant maintained a livery stable in which was located an elevator used fo' hoisting and lowering carriages and grain; that the elevator was operated by hand power by means of an endless rope and that the platform was suspended by a wire cable which at the upper end wound around a drum at the top of the shaft; that this cable at its lower end passed through the eyehole of an iron hanger, which was fixed in the center of the crossbar over the platform and.was turned back and the end fastened to the main cable by a single steel clamp; that on November 7, 1900, while the plaintiff, an employee of the defendant, was placing a carriage upon the elevator, the wife cable supporting the elevator platform pulled through the clamp permitting the elevator to fall and causing the plaintiff to sustain severe injuries.
    It further appeared that in August, 1900, the defendant employed one Murtaugh to examine the elevator and put it in perfect order; that Murtaugh, although not a skilled engineer, had been in the business of furnishing and repairing elevators of the character of the one in question for a great many years; that the work of repair was begun in September, 1900, and was completed October 9, 1900.
    The mechanic who did the last work upon the elevator and who, so far as appeared, was competent to perform the work of repair, testified that when he left the elevator the work of repair was finished and that nothing remained to be done to make it safe.
    
      
      Meld, that the court properly charged that the obligation resting upon the defendant was to rise ordinary care and caution to provide an elevator reasonably safe for the purpose for which it was intended to be used, and that it was required to exercise the same degree of care in maintaining a condition of reasonable'safety during the period of its use;
    That a charge that the fall of the elevator, standing alone, as an independent fact, did not establish the negligence of defendant, but that, when taken with the surrounding circumstances, the jury might find therefrom that the defendant was negligent in the maintenance of the elevator in a manner so insecure that it fell, was as favorable to the defendant as it was entitled to;
    That in employing Murtaugh, a practical builder and constructor of elevators of the character of the one in question, to examine and repair such elevator, the defendant had performed the obligation resting upon it, and that it was . improper for the court to charge the jury that they might consider, upon the question of the defendant's negligence, its failure to have the elevator inspected by a skilled engineer; .
    That it was improper for the court to permit a witness who inspected the elevator after the accident to testify, without limiting the effect of the testimony,, that at the-time of sucli inspection the elevator was fastened with two clamps, whereas at the time of the accident it bad only been fastened with one.
    O’Brien and McLaughlin, JJ., dissented.
    Appeal by the defendant, the Mason Stable Company, Limited, from a judgment of the Supreme Court in favor of . the plaintiff, entered in the office of the clerk of the county of New York on the 7th- day of November, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk^s office on the 10th day of November, 1903, denying the defendant’s motion for a, new trial made upon the minutes.
    
      Albert Stickney, for the appellant.
    
      John C. Robinson, for the respondent.
   Hatch, J.:

The plaintiff by this action seeks to recover damages for injuries alleged to have been • received on account of the negligent manner in which the defendant maintained an elevator; The' defendant is a corporation engaged in the livery stable business at 17 East Twenty-eighth street in the borough, of Manhattan, city of New York. It had been an occupant of these premises about-six months. Plaintiff had been in its employ fof six years as a general utility man and was so employed at the time of the accident. The elevator consisted of an open platform about six feet wide by fourteen feet long. At the sides and about the center were wooden uprights, with a crossbar connecting them at the top of a sufficient height to permit a carriage to run underneath. It was operated by hand power by means of an endless rope, passing over a wheel at the top of the elevator shaft, then .down through the various floors of the building on the outside of the shaft. The elevator could be operated upon any floor from the outside by pulling the rope in one direction to make it go down and in the opposite direction to cause it to ascend. The elevator itself was hung by means of a wire cable, the upper ends of which were wound around a drum at the top of the shaft, the lower end passed through the eyehole of an iron hanger which was fixed in the center of the crossbars which connected the top of the two uprights. This steel cable passed through the eye of the hanger, was turned back and the end fastened to the main cable again by a single steel clamp. Upon the 7th day of November, 1900, the plaintiff was ordered by his immediate superior to go to the top story and bring down a heavy top carriage called a landau. While engaged in putting the carriage upon the elevator it suddenly and without warning fell to the bottom of the shaft and the plaintiff received very serious injuries. It was conceded upon the trial that the accident was occasioned by the wire cable supporting the elevator pulling through the clamp. When released from the restraining hold of the clamp the cable was drawn through the eyehole of the iron hanger and this condition left the elevator without any support, by reason of which it'féll.

The evidence given upon the trial, we think, was sufficient to authorize the jury to exonerate the plaintiff from any charge of contributory negligence. This branch of the case, therefore, needs no farther discussion.

The serious question arises upon the proof to establish the negligence of the defendant. The court held, and we think correctly, that the obligation resting upon the defendant was to use ordinary care and caution to provide an elevator reasonably safe for the purpose for which it was intended to be used, and that it was required to exercise the same degree of care in maintaining a condition of reasonable safety during the period of its use. In construction of this rule the court charged: “ The duty incumbent on an employer ■ of furnishing a safe machine for its employees to work with does not ■ require him to furnish the best known appliances.- His duty is discharged when he furnishes an appliance reasonably safe and suitable, such as is ordinarily used in the business, and which is in good repair; and the test by which to determine whether he has performed that duty is not satisfied by the answer to the inquiry whether better appliances might have been obtained, but whether the selection made was reasonably prudent and careful.” The rules of law thus announced, we think, correctly and accurately state the obligation of the defendant. The court further held and charged that the fall of the elevator, standing alone, as an independent fact, did not establish the negli-' gence of defendant, but that when taken with the surrounding circumstances, the jury might find therefrom that the defendant was negligent in the maintenance of the elevator in a manner so insecure that it fell. In this- respect the charge was as favorable to the defendant as it was entitled, perhaps more so. • In application, however, of the proof under these rules of law we think the negligence of the defendant was not established with that strength of evidence which the law requires. It was testified to by the manager of the defendant that in August prior to the accident he employed one Murtaugh to examine this elevator and put it in perfect Order. Murtaugh has since died. He had been in the business of furnishing elevators for a great many years and in his'business constructed dumbwaiters and hand elevators, i. e., elevators whose movements were made and controlled by the hand without other power. This elevator was of that class. . He had also during this period of time repaired and put such elevators in order and employed mechanics for that purpose. The defendant’s manager gave Murtaugh the order to repair in August, but the work of examining and repairing the elevator was not done until the following September and the last work. done upon it was about the ninth day of October, when the mechanic put in a bolt and finally fastened the clamp. He testified : “ When I left this elevator I left it as a good job, one which in my opinion was a finished and complete job. Nothing further remained to be done • to make the elevator perfectly safe.” This witness had been engaged in the construction and repair of elevators of this character for nine years and upwards. There was no attempt made to discredit his skill and fitness to do the work and nothing which-appeared detracted from his ability as a competent mechanic to whom it was proper to submit the repair and restoration of this elevator. Nor is there any doubt or discredit cast upon the statement of this witness as to the time when he did this work and the manner in which it was finished. The'dates were accurately fixed by the bill which was rendered and which the defendant paid. Upon undisputed proof, therefore, coming from credible witnesses it appeared that a month prior to this accident the defendant had caused to be employed a competent person to put this elevator in perfect repair; that such person did the work and the defendant paid therefor. What more was required in order to discharge the obligation of reasonable care and how could the defendant have done more to meet such obligation, unless it had a special or continual inspection of the elevator following the time when it was informed that the elevator had been put in perfect order ? Upon this subject the court charged the jury: “Is it fair to say that there was no inspection of the elevator by an engineer or by an expert skilled in exact construction, except in so far as Mr. Hurtan gh, the gentleman applied to to make the repairs, may be deemed to have been an expert % Mr. Murtaugli was a practical man, a practical builder of such elevators, but he was not, so far as otherwise appeal's, a skilled engineer or a person who could in the examination of a thing of that kind point out in a scientific way what was necessary to make them reasonably safe. He may have been able in his experience as a practical man to construct similar elevators. But the fact that there was no inspection by a skilled engineer is a fact to be considered by you upon the question as to whether the defendant did all that it was his duty to do to make the elevator safe and secure.” This charge imposed an obligation upon the defendant beyond what the law required. When it had procured a man who was a practical builder and constructor of these elevators, who made them, and, consequently, must have been entirely familiar with them and their method of operation, it would seem to meet all of the requirements of the rule. The court, however, went further and submitted the question as to whether in addition to this care and caution the defendant ought not to have further procured inspection by a skilled engineer. Such requirement treads closely upon, if it does not embrace, the obligation of extraordinary care and that duty is not imposed even as to passenger elevators. (Griffen v. Manice, 166 N. Y. 188, 198.) The obligation is always relative; This-was an elevator of comparatively simple construction. It was not intended to be used for the purpose of carrying passengers or employees. The employees were in fact prohibited from riding upon it. The use to - which it was devoted was the hoisting and lowering of carriages and grain which was done by hand from the outside. Manifestly under such circumstances the doctrine of reasonable care did not require an inspection of the elevator by a skilled engineer in addition to the. inspection already had. No case of which we are aware has extended the doctrine of reasonable care beyond this point, as applied to an elevator of this character. There were no safety clutches upon the elevator, but the proof upon the part of the plaintiff shows that many of these elevators were used without such safety clutches, some had them. Under the rule announced by the court the absence of clutches was hot regarded as constituting an element upon which to predicate negligence. We think, therefore, that upon the undisputed proof the evidence is insufficient to justify a finding that the defendant had not exercised reasonable care, and that whatever presumption arose from the fall of the elevator itself was fully and completely explained, as was the defendant’s attitude thereto. We think, therefore, that the verdict was without sufficient evidence to support it in this respect.

In addition to this a fatal error was committed in' a ruling upon the trial. One Wood was called as a witness, who had been employed about this stable. He testified that on April 8, 1903, he visited the stable with Mr. Girarles E. Southard, the plaintiff’s expert, and examined the elevator and the fastening- of the steel cable. Over objection and exception he was permitted to testify that at that time it was fastened with two clamps, whereas at the time of the accident it had only been fastened with one. * There was no limitation placed upon the force and effect of this testimony. It was received generally in the case. Its manifest tendency was to convey to the minds, of the jury an impression- distinctly prejudicial, that the substitution of two clamps for the one existing at the time of the accident was a recognition upon the part of the defendant that the first construction was defective, and with this impression in the mind of the jury it is easily seen that they would readily be influenced to find the defendant guilty of negligence. Negligence, as said by Grover, J., in Dougan v. Champlain Transportation Co. (56 N. Y. 1), is “ to be determined by what was known before and at the time of the accident.” Judge Earl, in considering a similar question, said: “ While such evidence has no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.” (Corcoran v. Village of Peekskill, 108 N. Y. 151.) This rule is too familiar to call for further comment.

It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., and Patterson, J., concurred; O’Brien and McLaughlin, JJ., dissented.

O’Brien, J. (dissenting):

I dissent from the conclusion of the majority of the court, that the evidence is insufficient to justify a finding by the jury of negligence on the part of the defendant.

There was no substantial dispute upon the trial as to the manner in which the accident occurred. The freight elevator, which was operated by hand power, and upon which the plaintiff had just placed a carriage which he was making firm upon the platform, •suddenly'fell and it was found that the single iron clamp, designed to fasten the end of the cable about ten inches above the eyebolt upon the elevator through which the cable passed, had come off so that the end of the cable slipped through the eyebolt, permitting the elevator to fall, and leaving the cable dangling in the shaft. It was admitted by the defendant’s witness that most of the strain came upon this single clamp which it was testified measured four inches by an inch and a quarter and which was held in place by bolts. This clamp the defendant’s expert testified should, if properly put on, sustain a weight of at least 4,000 pounds, or about twice the actual weight expected, and the carriage which fell with the elevator i,t was testified weighed about 1,700 pounds, being one of the heaviest that the defendant had. The defendant testified that he had ordered James Murtaugh, who was in the business of furnishing and repairing dumbwaiters and hand elevators, to make a complete inspection of the elevator and attend' to any repairs that were necessary, and that in compliance with this order repairs were made in September, less than two months before the accident. The inspection was done by one Hansen, who testified that he found several defects, including a defective bolt in the clamp, and he supplied a new one, and that he made other repairs, including a pin under the flywheel shaft, sheet iron on the drum, a piece of slide which had been worn out, a new check rope, bolts in the frame and an extra counter balance weight and then ran the elevator and found it all right. He further testified that his only education was as a mechanic, at which he earned three dollars and fifty cents a day, and that he had never tested a cable nor the strength of iron nor any metal in his life, and he had not the slightest idea how much strain came on the clamp and never tried to find out, and that one clamp ought to hold as much as the cable would stand if properly put on, although he did not mean to say that one clamp holds-as much of a strain as two .clamps, and on that kind of elevator it was customary to use one clamp;

For the plaintiff it was testified by a mechanical engineer that-the usual and customary method of fastening elevators such as the one described was to pass the cable through the eyebolt twice and then to put on a clamp just above the eyebolt and a second clamp six or seven inches further up, and that if but one clamp is used with a loop through the eyebolt the strain comes directly on the-clamp; and that where two are used the strain is divided and the strength is twice as great, and that a single four-inch clamp as described was unsafe to- sustain a weight over 2,000 pounds, and might not sustain that weight.

, The question presented was whether or not a proper inspection was made, and in this connection whether the defendant used care in the selection of an inspector and whether the inspector in .fact adequately performed his -duties.

Assuming that in hiring a man in the dumbwaiter and hand- elevator business and in permitting the inspection to be actually made by a mechanic who was unfamiliar with testing the strength of materials, the defendant was not negligent, the defendant, as we understand the rule, cannot escape responsibility if that inspection was-inadequately made. As to employees, it has been repeatedly held that an employer must provide a safe and proper place in which to work, and in the case at bar, although it was testified that employees, were forbidden to ride upon the elevator, it was not seriously disputed that in the course of their work, as in the present instance, it was necessary for them' to go upon it. In Egan v. D. D., E. B. & B. R. R. Co. (12 App. Div. 556) the court held: “ This was a personal duty (the inspection of a boiler) imposed upon the defendant. It was not a sufficient performance of this duty that the defendant had appointed a competent person to inspect, but the inspection must be properly done, and if it was not properly done the defendant was liable however competent the person selected as an inspector might be. * * * To excuse him from liability the boiler must have been carefully inspected by a competent inspector." And in Scandell v. Columbia Construction Co. (50 App. Div. 512) in discussing the master’s duty of supplying safe and suitable tools, it was said: “ This is a primary obligation which cannot be delegated by the master so as to shield him from responsibility.” And in the recent case of McGuire v. Bell Tel. Co. (167 N. Y. 214) the court says: “ The duty of the defendant was just as great to safely maintain as to safely construct and that duty cannot be delegated so as to-exempt the master from liability.” The rule is thus stated in Byrne v. Eastmans Co. of N. Y. (163 N. Y. 461): “ Reasonable care involves proper inspection and negligence in respect of it, in such cases as this, is the negligence of the master and none the less so-when the inspection is committed to a servant.” So too, in Sarno v. Atlantic Stevedoring Co. (66 App. Div. 611), it is said: “ The duty of furnishing proper appliances for the use of the servant and of exercising reasonable care and prudence to protect the servant from avoidable injury is a duty of the master and cannot be delegated.” See, also, Jarvis v. Northern N. Y. Marble Co. (55 App. Div. 275), wherein it was said : “ The defendant’s ignorance of the defective condition of the interior of the mast does not relieve him from liability if, by the exercise of proper inspection, it could have been discovered ; ” and Rowley v. American Ill. Co. (83 id. 613), wherein it was said: “It was for the jury to decide from the facts appearing in this case whether the defendant made a reasonable inspection of this pole and it may not relieve itself from that burden by showing that it made the ordinary inspection.”

The simple character of the mechanical arrangement by which the elevator here was suspended, when supplemented by the information as to the weight• which sucha clamp if properly adjusted could maintain and the relative strength of single and double clamps and the testimony of the inspector as to the repairs he made, made it peculiarly a question for 'the jury to determine whether there was negligence in the construction and on the part of the inspector in inspecting and repairing the elevator. That his attention was called to the clamp appears from the fact that he found one bolt defective which he repaired; and the jury could properly conclude whether he should have supplied another clamp or made other repairs to secure safety.

With respect to the exception referred to as an additional ground for reversing the judgment, the record shows that the exception was to the ruling of the court admitting, over defendant’s objection, the question whether the elevator was in the same condition, and the answer to that question was,“ It was not,” This answer Avas in no way harmful to the defendant; and although it appears that the witness thereafter testified that the steel cable is now fastened with two clamps, no further objection was made or exception taken, so far as appears, to this testimony. The exception, therefore, was not of such a character as to require a reversal; and, furthermore, it may be said that as the evidence was very clear and ample as to what the condition was at the time of the accident, and was such as Would support a finding that the elevator' was defective and the inspection was negligently performed, it was competent for the jury to return a verdict holding the defendant liable for its failure to supply a safe place for the plaintiff to work.

I dissent, therefore, and think that the judgment should be affirmed, with costs..

Judgment and order reversed, new trial granted, costs to appellant to abide event. 
      
      
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