
    Clara B. Savage, Respondent, v. Joseph H. Bauland Company, Appellant.
    
      Negligence —fall of an elevator, caught by material entangled in the machinery, resulting from the slackening of the ropes controlling it— the ownerr owes a duty to exercise the highest degree of care and skill — a verdict for §11,500 held not to be excessive.
    
    A corporation maintaining a passenger elevator, -which, owing to a piece of buntr ing becoming entangled in its machinery, is caught in the elevator shaft at a point between the second and third floors of the building, thus imprisoning the passengers riding on the car, is bound to use the very highest degree of care and skill in extracting the imprisoned passengers.
    Evidence that after the engineer in charge of the elevator, who was a competent person, had made several unsuccessful attempts to remove the obstruction, the ropes which controlled the action of the elevator were slackened by his direction, and that while the engineer was making an attempt to remove the bunting, the rope controlling the governing mechanism of the car was thrown from a pulley and the car fell to the bottom of the shaft, no control then existing over its actions except such as was afforded by the safety cut-off which lessened the force of the contact, is sufficient, in an action brought against the corporation by a passenger who was injured by the fall of the car, to warrant the jury in finding that the defendant was guilty of negligence.
    The rule that an employee required to act in an emergency is not chargeable with an error of judgment, does not apply to such a case, as the imprisoned passengers were in comparative safety while the car was caught.
    A verdict, of $11,500 in favor of the plaintiff, a woman twenty-four years of age, will not be set aside as excessive, where it appears that as a result of the accident the plaintiff sustained permanent injuries to her spine and limbs, was confined to her bed for the greater part of a year, and suffered a serious disturbance of her nervous system.
    Appeal by the defendant, the Joseph H. Bauland Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of December, 1898, upon the verdict of a jury for $11,500, and also from an order entered in said clerk’s office on the 27th day of December, 1898, denying the defendant’s motion for a- new trial made upon the minutes..
    
      Jesse Johnson [John L. Wilkie and William Burton Goodwin with-him on the brief], for the appellant.
    
      Edward M. Bassett, for the respondent.
   Woodward, J.:

The plaintiff in this action, an unmarried woman twenty-four years of age, sustained certain injuries while riding in an elevator of the defendant, in the borough of Brooklyn. The elevator was of standard make, and was fully equipped with all of the latést safety appliances. It was regularly inspected, both by an agent of the company which insured the safety of passengers, and by -the engineer employed by the defendant. There is no claim of negli- , gence upon any of these grounds, but, on the day of the accident-, a piece of bunting, probably from -the material which had been used in decorating the elevator shaft for a special occasion, became entangled with the apparatus which Controls the movements of the elevator, in such manner that when the car had reached an altitude between the second and third floors above the basement, it was brought to a sudden standstill, and all efforts, by the use of the levers, failed to start the car in either direction. The president of the defendant company was notified, and immediately gave the matter his attention, sending for the engineer. The latter made several unsuccessful attempts to remove the obstruction; the feasibility of cutting the cage of the car and removing the passengers, some fifteen or twenty in number, was considered, but abandoned; and the engineer finally sent his assistant to the top of the elevator shaft, with instructions to slacken the ropes controlling the action of the machinery. He was not told what the trouble was, or given any instructions, so far as appears, as to what results were expected to follow his action. The engineer, in the meantime, remained near the elevator car, and when the ropes were slackened he attempted to remove the bunting which had caused the disturbance. In doing so the rope controlling the governing mechanism was thrown from the wheel or pulley, and the car descended to the basement without any control over its actions, except such as was afforded by the safety cut-off, which in a measure modified the force of the contact of the ■car with the foundation. . Some of the witnesses testified that such was the force of the fall that the car rebounded several feet. The ■engineer was shown to be a competent person, who had been in ■charge of the elevators of the defendant for several years.

The negligence on which to charge the defendant with liability must be found, if at all, in the manner in which the machinery and apparatus were operated. The learned trial court submitted this question to the jury, with the statement that the defendant owed the plaintiff the duty of operating its elevator with the “ highest •degree of care and skill.”

On the part of the defendant it is urged that this case comes under the rule laid down in those cases where the servant or employee finds himself in the presence of -an emergency, and uses his best judgment as to what shall be done to avoid an accident; but we are of opinion that this is not the rule which should govern. There was no emergency in the sense that any action was necessary to avert a catastrophe; The car had come to a standstill; all of the machinery was in good order, and, should the car start, under the the conditions that existed at the time the engineer was called, it would be in the full control of the young man who was operating the levers.' It is true that there were several women imprisoned, some of them very much frightened, and hysterical, but so long as the car remained stationary there was no great danger of harm corning to them. There were fifteen or twenty human beings in a position of comparative safety; it was .necessary, of course, to get them-, out of the car; but can there be any doubt, under the circumstances,,, that the defendant owed these passengers the duty of exercising the» very highest degree of care, and skill in accomplishing this result V. Had the defendant the right to try any experiments in lowering this car, without taking every precaution which was possible to-insure the safety of these persons? Obviously there was no such, .right; and if the defendant, relying upon the efficiency of its safety appliances, so operated its car that injury was done the plaintiff,,, there is no reason to doubt her right to recover.

It was not the duty of the plaintiff upon the trial to point out a, better way of releasing the persons in the elevator; the defendant: owed to the plaintiff, in common with others, the absolute duty of" landing her safely from the car, so far as such a result was-possible-by the exercise of the highest skill and care; and it is hardly to be-doubted that this could have been accomplished had the defendant-made the preparation necessary to Insure the safety of those who' were imprisoned within the elevator, and who were at the time in. no immediate danger of bodily injury.

In the case of McGrell v. Buffalo Office Building Co. (153 N. Y. 265), the court, in commenting upon the proposition that the-defendant in operating its elevator Was bound to exercise the utmost-care and diligence, concedes that this may be so as to the machinery, and appliances by which an elevator is moved and controlled in its. ascent and descent, where a failure to do so would be liable to cause great loss of life, but that as to the surroundings of such elevator, the defendant is charged only with that reasonable degree of care-which an ordinarily prudent person would exercise. “ The requirement of. the greater degree of care,” say the court, “is dependent,, not so much upon the actual apprehension of danger as upon the-consequences likely to result front a defect in the machinery and. appliances. In cases where less serious results are to be expected,, and in cases where danger is not: to be apprehended, if due and. proper care is observed by the passenger, the owner is responsible-only for the want of ordinary and reasonable care.”

In the case at bar the danger to be apprehended, if control of the car was lost, was great: the car was heavily laden with human beings, and was suspended between the second and third floors above the basement. If it fell, and the safety appliances failed to work, there was every reason to believe that many of the passengers would be seriously injured; and the degree of care which the defendant was bound to exercise was measured by the danger which was to be apprehended from the circumstances as they were disclosed to the defendant.

We are of opinion that the evidence was sufficient to justify the conclusion of the jury, if the rule of law laid down was correct; and upon this point we are satisfied that the learned trial court was not in error. The defendant could not permit the elevator car to get beyond its control, where it had the means and the opportunity of preventing it, under the circumstances of this ease, and rely upon its safety appliances to protect the persons in the car. It owed these passengei’s a higher duty than trying experiments; it should have taken every precaution reasonably possible, and, having failed in this duty, it must answer in damages to those who have suffered through its negligence.

We find no exceptions which are available upon this appeal, and we are unable to discover that the rights of the defendant were in any degree prejudiced by anything which occurred upon the trial of this action.

While the verdict is for a large amount, if the evidence in behalf of. the plaintiff is true, and this question has been passed upon by the jury in reaching its verdict, it can hardly be said that the sum is so out of proportion to the damage sustained as to be excessive.

A young woman of twenty-four years, permanently injured in her spine and limbs, who was confined to her bed the greater part of the year, and whose nervous system seems to have been seriously disturbed, cannot be held to be over compensated by the verdict which the jury has rendered.

We have reached the conclusion that the judgment appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  