
    Catharine M. Stott, Respondent, v. Addison J. Churchill et al., Appellants.
    (New York Common Pleas — General Term,
    December, 1895.)
    1. Negligence—Elevators. _ ’
    Plaintiff, who was a guest in defendants” hotel, was injured by the fall of the elevator, caused by the breaking of a piston rod which had . .become corroded at a point which remained constantly within the . cylinder. It appeared that defendants had employed experts to-examine and repair the. elevator without restriction, and that such experts did not remove the cylinder head to examine the. concealed ' portion of the rods: There was a conflict of expert testimony as to ..the existence of a custom to do so in making an examination. Held, that the question as to whether defendants had exercised reasonable care in the inspection of the elevator was properly submitted to the jury.
    2. Same—Duty op hotel landlord.
    . The landlord of an .hotel owes a duty, to his guests to exercise at least ordinary care and prudence in the care and management of the .elevator and the inspection-thereof, and cannot delegate that duty to another so as to relieve himself from liability for its nonperformance.
    3. Same — Charge.
    A qualification of a request to charge that defendants “were not bound to have the machinery of the elevator inspected by an unusual ■ or extraordinary mode of inspection ” by adding “ unless the necessity for such. inspection was obvious to a person of ordinary prudence, in view of the circumstances existing before the accident, while defendants were in possession of the elevator,” is proper where the elevator had been built fourteen years before and had been unused for a . year.
    4. Same.
    .The fact that a similar accident had never before occurred cannot avail in disproof of negligence in a case where the occurrence could be reasonably anticipated, and was' anticipated and guarded against by some.
    • Appeal from a judgment entered on the verdict of a jury at Trial Term in respondent’s favor.
    
      Thomas S. Moore and Herbert C. Smyth, for appellants.
    
      John A. Dutton, for respondent.
   Bookstaver, J.

The plaintiff secured a judgment for $6,475.65, damages and costs, for injuries received by her, while a paying guest in the defendants’ hotel, by reason of ' the fall of a passenger elevator in which she was riding set the Hotel St; George, Hew York city, on April 6,1893. The defendants were. the lessees of the hotel and had been for about a year prior to the accident. The elevator was made and wag put in the building by Otis Brothers about -1879, fourteen years before" the accident. It was operated by hydraulic power. A perpendicular cylinder was filled with water which moved a piston to which were attached two rods called piston rods, which, as they descended, drew Upwards the cablés which ran over pulleys and were attached to the elevator car. These rods were an inch and a sixteenth in diameter. The lower ends for a distance of about seven feet • were always immersed in water, as the piston did not rise quite to'the top of the cylinder. These portions were wasted by corrosion, as was discovered after the accident, until a core of only about one-fourth of an inch in diameter of sound metal remained. at the points where the breaks occurred . which caused the accident

The main contention for reversal is that no negligence'on the part of the appellants was shown and that the case was,, therefore, improperly allowed to go to the jury. It was , proven that before • the defendants opened tire hotel they . engaged men experienced in the business to examine the elevators and make necessary repairs, imposing no limitations as to what they were to do in making the repairs. The men so employed proceeded to make such repairs as they deemed sufficient, but did not remove the cylinder heads to .exanaine the concealed portion of the rods, thinking that if any corrosion was taking place within' some, evidence of it would be seen upon the exposed portions which were alternately within. and without the water in the cylinder. It was also testified by various witnesses, who had formerly been engaged as inspectors of elevators, that it was not their custom to remove cylinder heads where no signs of rusting were discernible in the exposed portions of the piston rods.

On the other hand, one McUamara, who had for thirteen ■ yeai’s had charge of the six hydraulic elevators in one of the' large office buildings of Hew York city, testified that he each year examined the piston rods inside the cylinder 'in his elevators, and that from time .to time rods had to be removed because they were corroded. And one Berg, an inspector for Otis Brothers, testified that, where the elevator was "old and he was directed to make a thorough examination, he generally took off the cylinder head or recommended that it be taken off.

Without going’ at greater length into the evidence, we deem it sufficient to say that a proper case was presented for the . determination by the jury whether the defendants had exercised' reasonable care in the inspection of the elevator.

The respondent claims that there was negligence not only in the failure to properly inspect the elevator, but also in the failure" to equip it with the most approved safety devices to check its fall in case -of accident to any of the machinery. Upon this point, without attempting to pass upon the merits of rival patents, it is only necessary to say that the device' employed tipon this elevator was only designed, "so its inventor testified, to operate when the cables or- chains gave way, not when the piston rods broke. This, of course,'made it all the more necessary that those rods should be thoroughly inspected.-

There was no error in refusing to charge “ If the jury find that the elevator and its machinery were built by reputable-manufacturers and that the defendants had it regularly inspected by experts in that business, and promptly executed the repairs and changes suggested by them, they performed their duty and are not liable for any injury caused by the breaking of the machinery.” However correct an exposition of' the law this might have been had the plaintiff been a servant seeking to recover from the master for the negligence of a competent fellow-servant, it was inapplicable to'the-case on trial. Appellants owed it to respondent to exercise -at least ordinary care and prudence in the care and management of' the elevator and the inspection thereof. A personal duty carinot be delegated to another so as to relieve the person bound to perform the duty from liability for its nonperformance. Shear. & Redf. 'Heg. p. 17, § 15. Besides, in this case, the defect, i. e., the corrosion, was palpable to any one of common • observation and intelligence had the rods been examined at the place where it existed, and it was properly left to -the jury under the circumstances to determine the question of prudence and care.

The court was also requested to charge that the defendants were not bound to have the machinery of the elevator inspected by an unusual or extraordinary mode of inspection,” to which the court added, “ unless the necessity, for such" inspection was obvious to a person of ordinary prudence in view of the circumstances existing before the accident while the defendants were in possession of the elevator.” It is claimed that this qualification constituted error because there was no evidence showing any obvious riecessity for an unusual er ■ extraordinary mode of inspection. In one sense of the words unusual and extraordinary there was such evidence, we think, in the fact that this elevator had been unused for nearly a year and was built fourteen years before the aecident. The usual and ordinary mode of inspecting new ■ elevators that had never been in disuse might well have been regarded by the jury as obviously inadequate.

The exception just considered, however, and several others . -are due to the mistake the appellants’ ■ counsel seéins to have made;, as- shown in his thirteenth request, in confusing the expressions ordinary care. and ordinary mode of inspection.. To conduct a-matter in the ordinary manner would not under ail circumstances be the full measure of duty the law requires. Such a standard would, in many cases,-be an altogether unsafe test. A defendant might exonerate, himself of the charge of negligence by showing that- he conducted his business in the same manner as others in the same line of business, howe.ver negligent in fact that manner might appear to be. to a man of ordinary prudencé. -A little group of men in a limited class of .business might," under such a -theory of law, determine for themselves, absolutely and conclusively, what measures of precaution they owed to the general public. Interested persons cannot be thus allowed to usurp the'functions of a jury

.•The fact .that a similar-accident had never before occurred, upon which- the appellants' so strongly rely, cannot avail in ,. disproof of negligence in a case where the occurrence could be reasonably anticipated and was anticipated and guarded against by some. In such cases the same kind of an accident may not have happened previously, to be sure, but such nonoccurrencermay have been due" to. the superior precautions of others'and in spite of the neglect of such precautions by the one subset ‘ quently seeking to' avail himself of the benefit of them.

The judgment should, therefore, be affirmed, with costs.

Bischoff and Pryor, JJ., concur.

Judgment affirmed, with costs.  