
    Minnie Hubener, an Infant, by Susan Hubener, her Guardian ad Litem, Respondent, v. Henry Heide, Appellant.
    
      Negligence —fall of am, elevator car, not negligence as matter of law.
    
    In an action to recover damages for personal injuries sustained by the plaintiff while employed by the defendant’s foreman, who made candy for the' defendant by the piece or pound, using a portion of the defendant's factory and employing his own help for that purpose, it appeared that the employees of the foreman were allowed to use a freight elevator in the factory to convey themselves to the respective floors on which they were employed; that on the morning in question the plaintiff, with other employees, entered the freight elevator and that after it had started up a few feet it dropped to the bottom of the shaft causing the plaintiff to receive the injuries in question.
    The elevator man testified that, when the elevator .began to fall he attempted to get control of it, but was unable to do so; that he had never experienced any difficulty in controlling it before; that the cable did not break, and that the elevator did not descend with sufficient rapidity to throw out the clamps which were designed to stop its fall in case the cable should break.
    The defendant’s engineer testified that the elevator was installed by reputable builders; that it was carefully inspected both before and after the accident, and that after the accident, if operated carefully, the elevator could have been run from the top to the bottom’of the shaft without alteration or repair.
    There was no satisfactory evidence as to the weight of the load carried by the elevator at the time it fell.
    
      Held, that the court erred in deciding that the defendant was liable as matter of law, and in submitting to the jury only the question of damages.
    . Appeal by the defendant, Henry Heide, from a judgment of the ■Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew Yqrk on the 31st day of January, 1901, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 6th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for personal injuries received by plaintiff on the 4th day of May, 1900, in consequence of the falling of a freight, elevator. The defendant was engaged in making and selling candy, at wholesale, at Hos. 84 to 90 Yandam street in the city of Hew York, and owned the factory building, which was nine or more stories in height. The building contained two passenger elevators, each five by five feet in dimensions, and one freight elevator seven by seven feet in dimensions, all of equal speed. The carrying capacity of the passenger elevators, as indicated by the manufacturers, was 3,500 pounds, and that of the freight elevator 4,500 pounds. The freight elevator carried twice as many passengers as either of the other elevators. The elevators were operated by defendant’s employees. The freight elevator contained a sign, “ For freight only,” or “ Freight and no passengers.”
    One Gravenstein, a foreman in defendant’s employ, made candy for him by the piece or pound, using in part the sixth, seventh, eighth and ninth floors and employing his own help. Plaintiff was twenty years of age and had been thus employed by Gravenstein for three years and worked on the eighth floor. A large number of men and women, some in the employ of the defendant and the others in the employ of Gravenstein, worked in this building. These employees had customarily, with the knowledge and apparent acquiescence of defendant’s superintendent and without objection, used the freight elevator mornings to convey them'from the third floor, where their dressing room was located, to the respective floors on which they were employed.
    The evidence indicates that there was a rule permitting such use of the freight elevator in the morning. At about seven-thirty a. m. on the day in question plaintiff, with about thirty other employes, entered the freight elevator on the third floor, which, after it had started up a few feet and before it • had reached the fourth floor, dropped to the bottom, and plaintiff’s foot was injured. The evidence on the part of the plaintiff tended to show that the elevator dropped suddenly and went down. with a" crash. The man who was operating the elevator had operated it for three years, and testified that there was one steel cable to pull when he wanted to go up and another to pull when he wanted to go down; that he was pulling the cable to move the elevator up; that it started up, but, after going two feet, went down; that he did all he could, but his hands were burned and he was unable to get control of it; that the cable did not break and the elevator did not descend with sufficient rapidity to throw out the clamps, designed to stop its fall in case a cable should break, 'and that he never had experienced any difficulty in controlling it before. There is no satisfactory evidence as to the-weight of the load that Was being carried by the freight elevator -at this time. The defendant’s engineer testified that the elevator was put in by reputable, builders ; that it was carefully inspected, both before and after the accident, and was in proper working order, except that the automatic stop which strikes the clamp was broken, but that, in his opinion, it had been broken by the elevator bounding up and down after descending; that, if operated carefully, the elevator could have been run from the top to the bottom after the accident without alteration or repair, and that if the operator would just, let his hands go off the cable the elevator would catch in the cable as it reached the bottom and stop itself.. ■
    The court assumed that the plaintiff was free from negligence, and that the defendant was guilty of negligence, and took this ques-> tion from the consideration of the jury and submitted only the question of damages. To this ruling, defendant excepted.
    
      JJt Snowden Marshall, for the appellant.
    
      John M. Wa/rd, for the respondent.
   Laughlin, J.:

We think that the learned trial justice erred'in deciding that the-defendant was liable as matter of law. The evidence tended to-show that the. elevator had been constructed and' installed by a-reputable builder and that it was on inspection found to be in good order and- repair. The man who operated the elevator was experienced and his testimony tended to show that he operated it carefully. His negligence is not conclusively established by the opinion of defendant’s engineer that the elevator could, with cafe, be operated safely. The defendant was not an insurer of the safety of those, using the elevator, nor was he obliged to use the greatest degree of care that human foresight and ingenuity could devise to providp against accidents; The rule as to the liability of common carriers of passéngers does not apply. Defendant was only liable for the omission of ordinary or reasonable care and caution in the purchase,installation, inspection and operation of the elevator. (Griffen v. Manice, 166 N. Y. 188.)

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

Van Brunt, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

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