
    Clotilde R. Keller, Respondent, v. The Wove Realty Company, Appellant.
    Second Department,
    October 16, 1908.
    Negligence — fall of elevator — evidence — res ipsa loquitur — contradiction of plaintiff’s witnesses—-erroneous charge.
    Where an elevator refuses to stop when the wheel is turned by the operator for that purpose, and continues to the top of the shaft, where it strikes, causing the hoisting cables to part so that the car falls to the basement,, there is a presumption of negligence.
    When, "in an action to recover for injuries so received, the defendant has proved " that the brake rod which stopped the car was broken and given evidence of sufficient inspection and cafe, and the plaintiff to meet the same has- shown that certain screws in the safety device were rusty so as to prevent its opera, tion, it is error to exclude evidence by the defendant showing that the screws wer.e not rusty. The defendant is not precluded from contradicting the plaintiff’s evidence merely because the defendant’s witnesses on cross-examination had denied that the screws were rusty.
    Where the evidence shows that the ascent of the elevator to the top of the shaft was riot caused by any act of the operator, it is error to. charge that the plaintiff can recover if the elevator was negligently operated.
    . Appeal by the defendant, The Wove Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of E'assau on the 15th day of February, 1908, upon the verdict of a. jury for $6,500, and also from an order entered in said clerk’s office on the 14th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    The action is for damages.for negligence.
    
      
      Frederick Hulse, for the appellant.
    
      James P. Niemann [ W. G. Phlippeau with him on the brief] for the respondent.
   Gaynor, J. :

As the plaintiff was being taken up in the elevator of the defendant’s apartment house it refused to stop when the wheel was turned by the operator for that purpose, but continued to the top of the shaft where it struck, and the hoisting cables parted and the car fell to the basement. The presumption of negligence which arose out of the happening of the thing itself made out a case for the plaintiff. The defendant then proved that the brake rod 'was broken, and that that was the cause of the accident, as the brake which stopped the car could not be applied either by the turning of the wheel or by the automatic appliances. It also introduced evidence from which the jury might have found that sufficient inspection and care had been used by the defendant. The plaintiff then introduced evidence that certain screws of the safety device were rusty and dirty, and that that interfered with or prevented the operation thereof. Thereafter evidence of a witness of the defendant that these screws were not dirty or rusty was excluded on the plaintiff’s urgent objections. This was material error. It is now claimed that- the evidence for the plaintiff on this head was in contradiction of certain evidence introduced by the defendant that these screws were not rusty or dirty. But this is not so. It is true that some of the defendant’s witnesses had been asked on cross-examination if these screws were not rusty and dirty and denied it; but this was no reason for preventing the defendant from contradicting the subsequent evidence of the plaintiff’s witnesses that they were.

The evidence shows that the ascent of the elevator car to the top was not caused by any act of the operator. Nevertheless counsel for the plaintiff had the court erroneously charge that if the jury found that the elevator was negligently operated the plaintiff could recover. That question should not have been submitted to the jury, but taken from them.

It is not surprising that the learned and able Judge who tried this. case,committed errors, considering the great number of needless and captious, objections and interferences of counsel disclosed by .the record. . The case is one which could be easily kept free . of error by counsel.

The judgment and order should'be reversed.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

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