
    Xaver Bugher, an Infant, by Frank F. Ogston, his Guardian, Litem, Appellant, v. Paul Pryibil, Respondent.
    
      Negligence — injury, from the straightening out of a hook holding the cable by which ari elevator is started., .
    A person using in his business an elevator,- of which the wire cable used by its operator to start and.stop it, in consequence.of the straightening out of the hook by. which it is secured, falls and injures an employee, cannot be held guilty ¡df - negligence where there is no evidence to show.that the elevator was.faulty in construction, and it is shown that a competent inspector, upon a thorough. examination of the apparatus, including the hook in question, about a week before the accident, found.it in good condition.
    Williams, J., dissented.
    Appeal by the plaintiff, Xaver Bucher, an mfánt, by Frank F. Ogston, his guardian' ad litem, from a.judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk ■of the. county of Hew York cm the 23d day of January, 1897, upon "the verdict of a jury rendered by direction of the court.
    
      Summer B. Stiles and Francis L. Wellma for the appellant.
    
      Gilbert Ray Hawes, for the respondent.
   Patterson, J.:

This action was brought to recover damages for personal injuries ■sustained by the plaintiff while employed by the defendánt and while he was engaged in operating a freight elevator used by the defendant in his business and upon premises occupied by him. The court below directed a verdict in favor of the defendant, and from the judgment entered upon that verdict this appeal is taken.

The right of the plaintiff to recover was put upon two. grounds; First, the improper construction of the elevator, and, second, neglect on the part of the defendant, the employer, to maintain it in good condition. The accident which resulted in the plaintiff’s injuries consisted in the falling of the check rope or wire cable by which the elevator was started and stopped. According to the testimony of the plaintiff this rope became detached and fell upon him. It did not bear any of the weight of the elevator car, but was suspended from a pulley near the roof, where it was secured by a hook that went into an eye or ring fastened to a turn buckle. The cause of the accident, undoubtedly, was not the breaking of the hook, but the straightening thereof' so that it slipped out of the eye or ring, causing the wire rope or cable to fall. There is nothing whatever in the evidence to show that there was any faulty construction of this elevator, or that it was not an entirely safe apparatus if in proper condition. Hor was the evidence sufficient to go to the jury upon any question of neglect on the part of the defendant to keep the apparatus in proper condition. The duty of the master to inspect and examine the machinery which his employees are set to work upon is very plain. It not only includes the necessity of an examination or inspection by a competent person, but it also involves the requirement that that inspection shall be careful and sufficient. It appears by uncontradicted testimony in the case that the elevator, and every appurtenance of it, was examined by an expert in such machinery only about a week before the accident occurred. The person who made the examination was engaged exclusively in the business of inspecting elevators. At the time he made the examination he had some 700 or 800 elevators under his charge as inspector. He inspected from six to eight elevators a day; he went all over this elevator, sounded all the sheaves and bearings, and spent from an hour to an hour and a half in .making the examination. ' He found it in good condition; he particularly examined the hook; he examined every part of the.hook and other parts of the machinery, and the pulley on the top and the check rope all the

way along, and there was nothing then to indicate even that the hook was worn ; and the testimony of the inspector is that if the hook had been worn it would not have straightened out, but that there would have been a fracture. There is nothing whatever, not even circumstantial evidence, to draw in question the accuracy of this testimony of the inspector or to impair its force in any respect.

The master performed his full duty, and everything was done that was required of him, even under the rule as laid down in Durkin v. Sharp (88 N. Y. 226). The inspection was made only a week or so before the accident occurred, and the court below was . right in directing a verdict for the defendant. ■

The judgment should be affirmed, with costs.

Yan Brunt, P. J., O’Brien and Ingraham, J.J., concurred; Williams, J., dissented.

Judgment affirmed, with costs.  