
    James F. Larkin, Appellant, v. The Washington Mills Company, Respondent.
    
      Negligence—defective automatic gate-used to close, an elevator shaft—employee injured hy its failure to 'closer
    
    A building occupied by several tenants contained a steam freight elevator, the shaft of which opened upon the street, and was guarded by a gate which was raised by hand when the elevator was at the street level, and fell automatically by means of a spring when the car was removed. No one was regularly employed to operate the elevator, the tenants using it as occasion required.
    In an action brought by an employee of one of the tenants against such tenant' to recover damages for personal injuries, it appeared that the plaintiff, having discovered that the spring controlling the gate did not work as it was designed to do, so informed the shipping clerk of the defendant, who said that he would have it fixed by carpenters in a day or two; that a few days later the plaintiff saw some lumber about the premises and was informed that the carpenters were at work, and that two or three weeks thereafter the plaintiff, who had not used the elevator ón the ground floor in the meantime, being ordered by the shipping clerk under whose direction he was to bring in a bale of goods from the street, took the elevator to the ground floor, raised the gate and fastened it, and that while he was behind the bale pushing it up an inclined plane toward the elevator car, some one, without warning the plaintiff (whose view of the shaft was obstructed), moved the ear to another position in the building and, the gate failing to fall, the plaintiff was precipitated with his load to the sub-cellar.
    There was also evidence that the spring had been out of order for three months or more, during which period it worked at times, and at other times did not.
    
      Held, that it -was error to dismiss the plaintiff’s complaint;
    That the question whether the defendant had exercised that reasonable care which it was its duty to exercise in providing the plaintiff with safe appliances was a question of fact for the jury, and that the plaintiff’s knowledge of the defective condition of the spring did not relieve the defendant from such duty;
    That, under the circumstances, notice to the shipping clerk of the defective condition of the gate was notice to the defendant;
    That the jury were authorized to find that the plaintiff might reasonably assume that the shipping clerk’s promise that the gate would be repaired had been fulfilled;
    That the fact that the accident would not have happened but for the act of a third person in moving the car did not excuse the defendant, as the failure of the spring to operate was also a proximate cause- of the accident.
    Goodrich, P. J., dissented.
    Appeal by the plaintiff, James F. Larkin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of June, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term.
    
      Charles J. Patterson, for the appellant.
    
      Robert Thorne [Frank V. Johnson with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff, a man thirty-two years of age, was employed by the defendant in sorting and shipping goods from 74 and 76 Worth street, New York. The building is a five-story structure, the defendant occupying as a tenant the ground floor, basement, sub-cellar and fourth loft, the other lofts being used by other tenants. The building was equipped with a steam elevator, running from the sub-cellar to the last floor, but, being a freight elevator, no one was regularly employed to operate it, each of the several tenants making such use of the elevator car tis their business might require. The elevator shaft was in the front portion of the building, opening upon the street, and, for the purpose of guarding against accidents at this point while the elevator was in use, a gate had been contrived, which was raised by hand when the elevator car was at the street' level, but which automatically fell and closed the street front of the elevator shaft when the car was removed. The plaintiff was not regularly employed as a porter, but was under the direction of the shipping clerk, who, at intervals, would send the plaintiff to the street to bring in packages of goods. On these occasions the elevator was used by the direction of the shipping clerk, and about three weeks prior to the accident, accepting, as we are bound to for the purposes of this appeal, the plaintiff’s version, the plaintiff,, in using the elevator, discovered that the spring, which had been contrived to let the gate fall when the elevator car was removed from the street level, was out of order, and did not work as it was designed to do. After releasing the gate by hand, the plaintiff went to the shipping clerk and informed him of the fact that the spring was; out of order, and the shipping clerk replied that some carpenters were coming to make some repairs in a day or two, and that he would have them fix the spring. A few days later plaintiff saw some lumber in front of the building, and Avas told that the carpenters were at work. Two or three weeks-subsequently the plaintiff was directed by the shipping clerk to. go to the street and bring in a bale of goods which had been deposited-there. ■ He took the elevator car to the ground floor, raised the gate and fastened it, went out and loaded the bale of goods upon a low truck, pushed it around-in front of the elevator shaft, and stopped and looked to see if the car was still in position. ■ The package weighed about 800 pounds, and it was necessary to push- it up an inclined plane to reach the elevator car. It was large and bulky, and in order to move it the plaintiff was obliged to get down behind it and push with all his weight. This shut off .his view of the elevator shaft, and during the time that he Was pushing this loaded truck a distance of fifteen or twenty feet some one, without ■giving any warning which the plaintiff heard, moved the car to another position in the building. The gate which was designed to drop whenever the elevator car passed a few feet in either direction failed to operate and the plaintiff was precipitated, with his load, to the sub-cellar, sustaining the injuries for which he now seeks to recover. On the trial the learned court granted a motion for a, non-suit upon the ground that the plaintiff knew, of the defect in the spring, and that he assumed the risk arising from that condition. The plaintiff appeals to this court, and urges that the learned trial court erred in granting the motion for a nonsúit, a -contention which we think to be sustained by the facts in this case.

Where the dangers-óf an employment are known and obvious the servant may be fairly said to have contracted with reference to the risks which are incident to the work, but' the master is- at all times charged with the- duty of exercising reasonable care to provide. the employee with a safe place in which to Work, and safe tools and appliances. The duty to furnish safe tools and appliances is not an absolute duty, but is satisfied by the exercise of reasonable care and prudence on the part of the master in the manufacture, selection and repair of such appliances. (Probst v. Delamater, 100 N. Y. 266, 273.) “ This is a duty,” continues the court, “ which cannot be delegated to a servant só as to éxcuse the master.from damages occurring through an omission to perform it, yet when the master has exercised all of-the cafe and caution which a. prudent man would' take for the safety and protection of his own person, -the- law does not hold him liable for the consequences of a defect which could not ■be discovered by careful inspection or the application of appropriate tests to determine its existence:” Had the master, in the case at bar, met this requirement of the law; had he exercised that care and caution which a prudent man would take for his own safety and protection ? Obviously this is not a question of law but of fact; it was for the jury to say whether the master, in permitting this defective spring to remain three weeks after he should have known of its defective condition, had exercised that reasonable care which it was his duty to exercise in. providing this plaintiff with sáfe appliances. The fact that the plaintiff knew the spring was out of order three weeks before did not modify the contract between the master and servant; it did not relieve the master from the duty of using reasonable care in furnishing safe appliances, and under the circumstances of this case notice to the shipping clerk, who had charge of the employees and who directed the use of the elevator, was notice to the employer. (Hankins v. N. Y., L. E. & W. R. R. Co., 142 N. Y. 416, 422, and cases there cited; Tomaselli v. Griffiths Cycle Corp., 9 App. Div. 127.) There was evidence in the case that the spring had been out of order for a period of three months or more; that it worked at times,, and other times did not, and it may be questioned whether this was not sufficient to have charged the master with negligence, independent of any specific notice.

There is a plain distinction between the ease at bar and McCarthy v. Washburn (42 App. Div. 252). Here the jury .were authorized to find, if they believed the testimony of the plaintiff, that he supposed, and had reason to suppose, that the promise made by the defendant’s supervising shipping clerk that the gate would be repaired, had been fulfilled before the plaintiff undertook the work which resulted in the accident. Mr. Muldoon, the shipping clerk, when the plaintiff complained to him about the condition of the gate and the failure of the spring to act, told the plaintiff that carpenters were coming to fix the hatch, and that when they came he would have the gate attended to. Between that time and the occasion of the accident the plaintiff had not used the elevator on the ground fio or where the gate was. In the interval he had seen lumber on the premises and had been told that carpenters were working upstairs. Under these circumstances the plaintiff might reasonably assume that the promise of the shipping clerk, in reference to repairing the gate had been carried out, or at least a jury could so find. In McCarthy v. Washburn, however, there was no room for any such inference on the part of the plaintiff. He was digging in a sand bank under conditions which he had already recognized to be dangerous; he knew perfectly well, notwithstanding the assurances which he had received from his employer, that his employer had done nothing whatever to secure the bank or lessen the peril; and, furthermore, by himself continuing the process of undermining the bank in which he was at work, he constantly augmented the danger to which he was exposed. A glaring case of recklessness was thus presented in which there was no room for doubt that the plaintiff had brought upon himself the injury of which he complained, while here the acts of. the plaintiff may be capable of a view which would free his conduct from the reproach of imprudence. .

It is urged by the defendant that the proximate cause of the accident was the moving of the elevator by some third person, without giving warning, and that the defendant cannot, therefore, be charged with negligence because of the defective spring. While it is probably true that if the elevator had not been moved the accident would' not have occurred, it is equally true that if the gate had operated as it was intended to do, and as it did operate when the spring was in order, the plaintiff would not have fallen into the elevator shaft ■; and when several proximate causes contribute to an accident, and each is an" efficient cause, without the operation of which the accident would not have occurred, it may be attributed to all or to any of the causes. (Ring v. City of Cohoes, 77 N. Y. 83.)

The judgment appealed from should be reversed, with costs.

All concurred, except Goodrich, P. J., dissenting.

Goodrich, P. J. (dissenting):

I dissent from the prevailing opinion, on the ground that I find no evidence to justify the theory that the defendant was bound to keep in repair the elevator and gate, or that Muldoon was the defendant’s alter ego.

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