
    Addelaide E. Scott, as Administratrix, etc., of William A. McGowan, Deceased, Respondent, v. Nauss Brothers Company, Appellant.
    First Department,
    December 2, 1910.
    Master and servant —■ negligence — death by fall of hoisting elevator — verdict against weight of evidence — failure to prove defect in elevator — safe place to work — failure to use hoisting engine — evidence — ■ custom, as to inspecting elevators — expert opinion—charge — res ipsa loquitur — Employers’ Liability Act.
    Action against a master to recover for the death- of an employee who, while standing under a hoisting elevator and pulling a rope used to hoist it, was killed by the fall of the elevator. Evidence examined, and held, that a verdict for the plaintiff based upon a finding that the hoisting cables broke was against the weight of evidence.
    A master cannot be charged with negligence owing to the fact that steel keys used to fasten a drum upon which the cable wound to a shaft sheared off, so that the drum became loose on the shaft and allowed the cables to unwind, where there is no evidence showing how long the condition causing the accident had existed and the condition of the keys could not have been discovered by inspection, and there is no claim that the elevator was improperly constructed and it was of a type in common use.
    Although the decedent in hoisting the elevator was obliged to stand under it, the master cannot be charged with negligence in failing to provide a safe place to work where the place became unsafe, only if the elevator itself were unsafe and there is no proof of negligence in the master in failing to provide an ele- . vator reasonably safe for the use for which it was intended or in exercising care to maintain it in a condition of reasonable safety.
    The rule that a master must provide machinery reasonably safe for the purpose for which it is to be used and maintain it in a reasonably safe condition does not require him to furnish the best of known appliances, but only such as are safe and suitable and such as are ordinarily used in the business.
    In such action it is error to admit evidence that a gas engine which might have' been used to furnish power for the elevator was hot in operation, for it is not a question as to whether there might be a safer means of raising the elevator, but whether the one in actual use was reasonably safe and suitable.
    So too,, where the master had shown that the elevator was fully inspected before the accident, it was error to. excludé evidence showing how frequently similar elevators were inspected, and the instructions given to the. master’s foreman relative to putting the elevator in repair and the foreman's knowledge of the repairs actually made.
    Where the fall of an elevator may as well have been a matter of improper, operation as- of structural defect, it is error to charge that the rule of res ipsa loquitur applies. •
    The burden'resting upon a master-to use reasonable care in the selection of appliances and "make reasonable inspection thereafter, has not been changed by the'.Employers’ Liability Act which, as regards defects in the -ways, works or machinery connected with the master’s business, is merely declaratory of the common" law.
    •In such action it is error to exclude the opinion of an expert who examined tile machinery and had. experience .in building elevators as to the situation of the . elevator when the keys holding "the drum to the shaft gave way, and his opinion asto whether the strain of the platform' and load thereon was-sufficient .to break the keys.
    Appeal by the defendant, the Nauss Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of-New York on- the 18tli day of. January, 1910, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the samé day denying the defendant’s motion for a -new trial made upon "the minutes.
    
      Frederick Ilulse, for the appellant-.-
    
      George H. Culver, for the respondent.
   Dowling, J. :

On June .18,1903, the defendant conducted the “ Harlem Stables ” in the city of New York, and in connection therewith maintained, operated and controlled a freight elevator used for the hoisting and lowering of freight and other articles from floor to floor in the premises which it occupied. This elevator was of the familiar open type and was operated by hand by means of ropes, by pulling op which it was either raised or lowered.

Plaintiff’s intestate, William A. McGowan, was in defendant’s employ and in the course of his duty was required to assist in the raising of said elevator by pulling upon the rope used, for that purpose. This he did by standing, under the elevator while the other men engaged in the raising stood upon its platform ; owing to its location, and to that of the ropes by which its motion was controlled, there was no other place where McGowan could stand and do his work save under the elevator itself. While so engaged upon the day in question, and after he had assisted in raising the elevator to the third floor of the building, as he was about to walk away from the place where he had been working, the elevator suddenly fell, and in its fall caught McGowan and crushed him to death. To recover damages therefor this action is brought by plaintiff under the Employers’ Liability Act (Laws of 1902, chap. 600; revised in Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 et seq.), upon allegations of the failure of defendant in its duty “ to provide for its employees a suitable, safe and sufficient elevator,” and to “ supply them with suitable,-safe and sufficient means, materials and appliances to operate said elevator and keep the same in repair; ” and further allegations that there was a defect in the condition of the ways, works or machinery connected with or used in the business of the defendant in the operating of said elevator, which arose from or had not been discovered or remedied, owing to the negligence of the defendant or of some person or persons in the service of the defendant and entrusted by it with the duty of seeing that the said ways, works or machinery were in proper condition, and that in consequence thereof arid without any negligence or want of care on the part of the said William A. McGowan, who was engaged in operating said elevator as .aforesaid, said elevator suddenly fell upon and so crushed and injured him that it caused liis immediate death.”

In the notice given under the Employers’ Liability Act it is claimed that the fall of the elevator was occasioned “ by the unsafe condition of the elevator, the breaking of one or moré,of thé cables or ropes connected with said' elevator, or by some other defect in the machinery or appliances used in running, the same, and that the said accident was due to the negligence, carelessness and want of proper attention of ISTauss Brothers Company, its agents, servants or employees.”

Upon the. trial it was sought to be established by plaintiff that the fall of the elevator was . due to the'8 breaking of the cable by which it was suspended, and by the testimony of three witnesses to the effect that there was but one cable and that one end of it was broken and hanging over the crossbeam. ' Another witness also swore 'that there was but one cable. One of these witnesses was sought to be discredited by a statement which he made some six months after the occurrence, in which he said he did not see any broken ropes- and. did not make any inspection of the elevator. . Plaintiff did not show the condition of the cable at the point where : it "was claimed to .have broken, and the sole testimony upon that .point -was.,that of two witnesses, Amberger and Kreuger, the former •' of whom,- called on behalf of plaintiff, testified that it was an old cable, but he did not examine it, although he swore it was rusty and there was a stain on it. The latter, a witness for defendant^ on ..-direct examination, testified that the cables were in good condition and that they were rusty. Whether this rust was more,than superficial, and whether it appeared anywhere near the spot where the cable was claimed to have been broken, does not appear.. ,

On the other hand, defendant produced a witness who in April, 1903, inspected for defendant the elevator in question, including cables (two in number), guides and -all other appliances, and had it operated so that he might examine the. cables particularly as they were wound and unwound on the drum; he said that although they were rusty they were in good condition, and that after he had done certain -work with respect to a loose key in the hoisting drum, so as to render it secure, he left the elevator and its appliances in perfect condition.. ■

Another witness was sent by the James Murtaugh Company, who are ■ engaged in the btisiness of repairing hand-powei: and electric elevators, to examine the elevator in question shortly after the accident. He found two hoisting cables on the elevator, neither one of which was broken, and discovered the cause of the accident to have been the breaking crosswise of one of the keys that fastened the hoisting drum to the shaft, and the splitting lengthwise of another key, by reason of which the drum had revolved loosely upon the shaft and the cable unwound, causing the elevator to fall. The carpenter who worked upon the floor of the elevator on the morning after the accident swore that there were two hoisting cables, neither of which was broken. Some six other witnesses also testified that there were two hoisting cables, neither of which was broken after the accident, some of the witnesses being persons who worked upon the repairs to the elevator, and all of them having seen the elevator within a short time after the occurrence in question, A careful examination of all the testimony demonstrates that by a clear preponderance of testimony it has been established that there were two hoisting cables attached to the elevator, that neither of them was broken, and that the fall of the elevator was not due to any severance of the cables or either of them, but to the breaking and splitting of the keys which connected the hoisting drum with the shaft, as testified to by the witness O’Brien,

It is clear that so far as the recovery could be predicated upon the theory under which plaintiff sought to recover the- verdict was against the weight of evidence.

Viewing the occurrence in the light of the facts established by the present record, there is no evidence upon which defendant’s liability can be predicated, It does not appear how long the condition which caused the accident had existed, although it may be assumed that it could not long have continued without disclosing itself by the revolution of the hoisting drum, the consequent unrolling of the cables and the immediate falling of the elevator. Nor does it appear that the condition of the two keys, or of either of them, could have been discovered by examination before the accident occurred.

There is no claim that the elevator was not properly constructed originally ; on the contrary, it affirmatively appears that it was of a familiar type of hand-power elevator in common use.

What was defendant’s obligation as employer to McGowan as its employee ? It is claimed that it was bound to furnish him with a safe place to work. But the place where he was obliged to do this particular work of . assisting in raising the elevator was not of itself dangerous, nor was there any defect therein. It became dangerous only when made so by the presence above him of á defective or dangerous elevator. The question resolves itself then into the second .theory of the defendant’s liability — furnishing him. with defective machinery with which to do his work — since the very act of hoisting constituted the source of danger to the employee, in view of the place where his' work was required to be done. Defendant was under the obligation, therefore, of using ordinary care and caution to provide an elevator reasonably safe for the purpose for which it was intended to be used, and of exercising the same degree of care in maintaining a condition of reasonable safety during the period of its iise. Tlds rule does not require the furnishing of tlie best known .appliances, but sudh as are safe and suitable, are ordinarily used in the business and are kept in proper repair... (Young v. Mason Stable Co., Ltd., 96 App. Div. 305.) In the case at bar there is$no attempt made to meet the proof that the hand-power elevator in question was of the ordinary type in common use; there is no question raised that it was not suited for the uses to which it was applied; there is no claim of the absence of any proper device to assist in insuring safety in its operation. Evidence was improperly received of a gas engine, not in operation, but which- apparently at some unfixed time might have been used to furnish power for the elevator. Ho liability could have been ■ predicated upon tlie mere presence of such an engine, for the question was not whether a safer means of applying power could have been furnished, but whether the one in actual use was reasonably safe and suitable. Ho accident was shown to have occurred while defendant was maintaining the elevator; no specific complaint was ever made about the use of hand power, save that it was hard to pull the elevator up in that way, although there is testimony by one witness that he told the foreman that it was not. an elevator for people to pull at,” and the latter said it would be fixed. The elevator was fully inspected and' put in condition in April, 1903, and defendant was not allowed to show how frequently it was customary to' inspect similar elevators, nor the instructions given by its foreman. to the Murtaugh Company relative to putting the elevator in repair, nor the foreman’s knowledge of the repairs actually madej all of which rulings were erroneous.

This case was submitted to the jury by the learned justice upon the theory indicated by his charge, as follows: - “ It is ordinarily necessary that the plaintiff should prove to you by a preponderance of evidence that the accident was caused by the negligence of the defendant, and that the plaintiff in no way contributed to it by his own negligence. In cases like this, however, we must apply the doctrine known in law as res ipsa loquitur; that phrase means simply, ‘ the. thing speaks for itself.’ That is to say, in this case the jury is warranted in inferring negligence from the very fact that the elevator fell, since the accident would not have ordinarily occurred if the elevator and the machinery connected therewith had been in proper condition. It then becomes incumbent upon the defendant to explain by a fair preponderance of the evidence that even though the elevator did fall, and would not ordinarily have fallen had it been in proper condition, nevertheless, the accident was not caused by any negligence of the defendant, either in the matter of providing a reasonably safe elevator and appliances to ■prevent such a fall, or in failing to take such reasonable care' to keep the elevator and appliances in a reasonably safe condition. How, this is the first question that you, as judges of the fact, must decide. You have heard the testimony concerning tlie construction and operation of the elevator, and concerning what the defendant did, if anything, to keep it in proper repair. Under all the circumstances, has the defendant, by a fair preponderance of the evidence, satisfied you that it has complied witli the conditions I have indicated, so that you cannot say it was negligent ? If it has, then your verdict must be for the defendant.”

Exception was duly taken to the charge that the rule res ipsa loquitur applied to the case. Ho exception was taken to that part of the charge wherein it was stated, in effect, that the application of the rule shifted the burden of proof to the defendant. But this was clearly erroneous, for as was said in Cunningham v. Dady (191 N. Y. 152, 157): The burden of showing the cause of the cave-in rested on the plaintiff, and throughout the case he was required to sustain his claim by a preponderance of evidence. - This burden is never shifted on to the defendant, not even in cases where the maxim invoked applies. Where it- applies, the presumption only establishes a prima facie case in favor of the plaintiff, and the defendant is -then charged with the obligation of meeting such a case.” The question whether the principle applies in this case was clearly presented by exception.

In Griffen v. Manice (166 N. Y. 188) it was said that “ the application of the principle depends on the circumstances and character of the occurrence, and not on - the relation between the parties, except indirectly so far as that relation defines the measure of duty imposed on the defendant. * * * The (res,’ therefore, includes the attending circumstances, and so defined, the application of the' rule presents principally the question of. the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue — the defendant’s negligence. The maxim is also in part based on the consideration that where the management and control of the' thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present.” In Breen v. N. Y. C. & H. R. R. R. Co. (109 N. Y. 297) it was held: “ There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of á defendant, and the accident is such as, in the ordinary course of business, does not, happen if reasonable care is used, it does, iii the absence of explanation by the defendant,; afford sufficient evidence that the accident arose from want of care on its part.” Hence the rule -has been applied in cases where the brick wall of a building fell into the street (Mullen v. St. John, 57 N. Y. 567); and where a piece of metal fell from defendant’s elevated track Upon a passerby on the public highway. (Gall v. Manhattan R. Co., 24 N. Y. St. Repr. 24; affd., 125 N. Y. 714; Volkmar v. Manhattan R. Co., 134 id. 418; Hogan v. Manhattan R. Co., 149 id. 23.) In all these cases the very occurrence itself imported negligence. But here the fall of the elevator may as well have been a matter of improper operation as of structural defect. This is not a case such as Young v. Mason Stable Co. (193 N. Y. 188), where the elevator fell when it was stationary and without any apparent cause, by reason of the insufficiency of a clamp. It is a case where the employee himself was a' part of the operating power of the object which fell; and under such conditions, it seems to me that the rule res ipsa loquitur has no application. . The general rule is thus stated in 26 Cyc. 1411: “No presumption of negligence on the part of the master arises from the mere existence of a defect or the happening of the accident through which the servant was injured.” In discussing the rule res ipsa loquitur, the following limitations are suggested by Professor Wigmore in his work on Evidence (Yol. 4, p. 3557): (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.” In an action brought before the Employers’ Liability Act, it was •held that merely showing that a freight elevator fell, while being operated with care, was not sufficient to overcome the presumption that the master had performed'his duty, and that the ordinary rule applied that the servant must show that the machinery or apparatus vvhich caused the accident was defective or out of repair, and that this condition existed for such a length of time that, if the master had performed his duty of inspection, it would have been discovered and remedied. (Starer v. Stern, 100 App. Div. 393 ; Stackpole v. Wray, 99 id. 262.) It has also been held in an action by a servant against the master that the mere collapse of a derrick due to the breaking of an eyebolt did not subject defendant to liability in the absence of proof of negligence, (Dougherty v. Milliken, 163 N. Y. 527; Welsh v. Cornell, 168 id. 508.) And in Dobbins v. Brown (119 N. Y. 188), which was an action for causing the death of plaintiff’s intestate while in defendant’s employ, by a fall from a bucket wherein he was being- lowered in a shaft some 400 feet deep to his place of labor in a tunnel, and wherein it appeared that after the accident the cable supporting the bucket and dummy-yoke was found to be broken at a point about 20 feet above the bucket, and the dummy-yoke, broken, with the bucket and a portion of the chain, were found lying at the bottom of the shaft, Chief Judge Huger said: “ Whatever might have been the cause of death, it was for the plaintiff to show how it occurred. The burden of proof lay upon her to establish the liability of the defendants, and to do this she was bound to show affirmatively, not only the absence of contributory negligence on the part of her intestate, but the negligence of the defendants in respect to some matter which caused the. injury complained of. The former may be legitimately inferred from the evidence, but with respect to the latter we have been unable to discover sufficient evidence in the ease.”

We are referred to no case holding that the burden resting upon the master of reasonable care in the selection of appliances and reasonable inspection thereafter, has been changed by the Employers’ Liability Act, which, in so far as regards defects.in the ways, works or machinery connected with the employer’s business., has been said to work no change in the law of the State and to be declaratory of existing common-law principles, so that an action brought under subdivision 1 of section ! of the act could as well be brought under existing provisions of the common law. (Alger & Slater’s Employers’ Liability Act [2d ed.], 22.)

Error was also committed in excltiding evidence sought to be elicited from an expert witness as to what, in his opinion, based on his examination of this machinery and his experience as a builder and constructor of elevators, the situation of the elevator was when the keys gave way on the shaft at the drum, and whether the strain of the elevator platform witli the load present thereon, was sufficient to break the keys. This was a case where, the facts not being of common knowledge and the conclusions to be drawn from the ■ facts depending tipon professional or scientific knowledge or skill, the conclusion of the expert, in the form of an opinion, might be given to the jury for its acceptance or rejection. (Dougherty v. Milliken, 163 N. Y. 533.)

By reason of the errors set forth, as well as because the verdict is against the weight of evidence, the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingeaham, P. J., McLaughlin and Clabee, JJ., concurred ; Scott, J., concurred in result...

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