
    James Hackett, Appellant, v. H. Koehler & Company Respondent.
    First Department,
    November 4, 1910.
    Master and servant — negligence — injury by fall of material from elevator— failure to guard platform — verdict not excessive.
    Where in an action against a master to recover damages for personal injuries caused by the fall of merchandise from the floor, of an elevator upon which the plaintiff had loaded it, it appears that the elevator, erected on the outside of a building, was open on three sides; that it was customary to guard the platform of such elevators, but that the master failed to maintain guards, and that a chain formerly used to guard the outer side of the platform had for a long period been allowed to remain in such condition that it could not be used, it is error to set aside a verdict for the plaintiff and dismiss his complaint.
    A verdict of §4,000 is not excéssive where the plaintiff who before the accident had been a strong man, fifty-six years of age, was left permanently crippled so as to materially impair his earning capacity, and he was precluded by reason of pain and suffering from doing any work for seven months.
    Appeal by the plaintiff, James Hackett, from a judgment of the Supreme Court in favor of the defendant, entered in the.office of the clerk of the county of New York on the 24th day of February, 1910, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the New York Trial Term, the verdict of a jury for $4,000 theretofore rendered in favor of the plaintiff being set aside, and also from an order entered in said-clerk’s office on the 18th day of February, 1910, pursuant to which said judgment was entered.
    
      Thomas J. O'Neill, for the appellant.
    
      John C. Robinson, for the respondent.
   Scott, J.:

Plaintiff appeals from an order setting aside a verdict in his favor and dismissing the complaint upon the merits.

The plaintiff was employed as a cellar man, and on the day of the accident was directed to assist other employees in loading bags of cerealin upon an elevator, which carried the bags to the fifth story, where they were unloaded. Plaintiff’s injury resulted from the fall of one of these bags, which fell from the elevator after it had arrived at the fifth story, and had been stationary there for some minutes, and after a part of the load had been taken off. It is insisted by the respondent that the bag must have fallen either because it was improperly loaded by plaintiff and his fellow-servants, or that it must have been dislodged and caused to fall by the negligence of a fellow-servant who was engaged in unloading the bags. Both of these suppositions are purely hypothetical, and are without evidence to support them. The jury was carefully and distinctly charged that, if the accident happened in consequence of the negligence of one of his fellow-servants, the plaintiff could not recover. By their verdict the jury must have found that it did not so occur. The decision of that question was one which was for the jury, and we find nothing in the evidence to justify us in arriving at a different conclusion. Whatever may have first dislodged the bag, it is quite apparent that the accident would not have happened if the elevator platform had been guarded, as an expert witness testified that it should have been, and as, according to' him, similar elevators usually are guarded. The elevator in question was erected oh the outside of the building against the wall, so that it was open on three sides. There were protective chains on either side. It had undoubtedly been considered at one time that some protection was desirable on the front, and a chain had been provided to stretch across the front, but it had not been used for a long time, and could not have been used on the day the accident happened, because the staple or pin to which its free end should have been hooked was broken away. The expert called by the plaintiff, and who was not contradicted, testified that the usual method of safeguarding open platform elevators was to have a wooden cribbing or a wooden or metal guard on the sides, and to have in front a collapsible metal gate or wooden gate that could be lifted and lowered. Whatever may have been the cause of the dislodgrnent of the bag, it seems clear that it would not have fallen if the platform had been protected, as the evidence tends to show is usual and customary. The defendant cannot be wholly acquitted of negligence in failing to furnish some guard to what was an obviously dangerous appliance if left unguarded, and which, being unguarded, made that portion of the premises under the elevator an unsafe place to work. At least the defendant should have seen to it that the slight guard originally provided was kept in proper order to be used. Whether the chain, if it could have been used, would have been sufficient is not the question. The negligence consisted in leaving the front of the platform -wholly unguarded. The plaintiff, prior to the accident, was a strong, hale man about fifty-six years of age. The accident left him permanently crippled, and has materially impaired liis" earning capacity. Its immediate effect was to cause him great pain and suffering, and to preclude him from working at all, or earning anything for a period of about seven months. We cannot say that the verdict was too large.

The order and judgment appealed from must be reversed, with costs and disbursements to the appellant, and judgment directed to be entered upon the verdict.

Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred.

Order and judgment reversed, with costs and disbursements to appellant, and judgment ordered on verdict. Settle order on notice.  