
    Charles Hausen, App’lt, v. Charles Schneider et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Master and servant—Negligence—Defective elevator.
    Plaintiff, a Dane, who had heen in this country four years, was in the employ of defendants, who were moving into the upper floors of a building. While engaged in moving barrels of dust on a freight elevator it was found the elevator was wedged by a brick, and his fellow workman got off to remove it, when the elevator fell to the basement, injuring the plaintiff. The fall was caused by the want of a safety clutch on the elevator, but such defect was not so apparent or obvious as to be seen by persons examining the lofts for the purpose of hiring them, and it was not shown that defendants had knowledge thereof. The lease to defendants restricted the use of this elevator for freight only, and a notice to that effect was posted. Held, that the evidence did not prove that defendants omitted the use of proper care for the safety of their employees, and that the complaint was properly dismissed.
    (Brady, J., dissents.)
    Appeal from judgment dismissing the complaint John Brooks Leavitt, for app’lt; Austen G. Fox, for resp’ts.
   Daniels, J.

But the defendants were not shown to have been aware of the fact that the elevator had not been provided with this, or any other clutch. And the premises had not been so long in their possession, or subject to their inspection, as to subject them to the charge of negligence for not ascertaining that this was its condition. Their lease was dated the 13th of February, 1886, but their term or right of occupancy did not commence until the day of the plaintiff’s injury. Ana there was no proof that the absence of the clutch was so obvious or conspicuous as to be l'eadily seen by persons examining the lofts for the purpose of hiring which is the most they may be assumed to have clone. And if that were not the fact, then the defendants could not be legally charged with negligence on account of the elevator not being supplied with a clutch. In this important respect this case differs from these specially relied upon to support the appeal. For in Corcoran v. Holbrook, 59 N. Y., 517, the elevator was out of repair to the knowledge of the general agent, which the court held to be imputable to the defendants, rendering them liable to the charge of negligence.

In Stringham v. Stewart, 100 N. Y., 516, the defendant was clearly liable for the condition in which the elevator had been maintained and allowed to be used. And in Avilla v. Hash, 117 Mass., 318, the defendant was liable for allowing a defective elevator to be used, although that had been forbidden by a rule, but which was systematically disregarded to the knowledge of the.defenant There had been no such use, nor indeed any use of this elevator by persons riding in it to the knowledge of either of the defendants. And at the left side of the street entrance to the elevator a sign was, up, forbidding persons riding in this elevator,which was sufficiently placed and large enough in its lettering to be observed by persons proposing to use the elevator. And although the plaintiff was a Dane, and not acquainted with the English language, when he came into the country in 1882, it may be assumed, in the absence of evidence to the contrary, that he had become sufficiently conversant with the language to enable him to read and understand this sign on the first of May, 1886.

By the lease to the defendants the elevators were to be used for freight only. And the fact that another elevator had been used in the other building by the workmen passing up and down, furnished no ground for assuming that this one might be so used, especially as this restriction of its use had been inserted in the lease.

The general rule undoubtedly is, as the plaintiff’s counsel has insisted upon it, that the employer is bound to observe reasonable care and attention in providing for the safety of the persons employed in using the apparatus and machinery provided for them. Washington, etc. R. R. Co. v. McDade, 135 U. S., 554. But in this case the evidence did not prove that the defendants had omitted the observance of this care or that they knew of, or in any manner sanctioned the use of this elevator by their employees. There were no facts disclosed at the trial which would have sustained a recovery by the plaintiff.

The judgment should, therefore, be affirmed.

Van Brunt, P. X, concurs; Brady, X, dissents.  