
    Charles Swenson, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—duty of inspection of an elevator upon which railway cars are run — blowhole and crack in a gear wheel, not tested by the hammer for a yea/r—charge as to the omission from the elevatoi' of safety appliances.
    
    In an action brought by a person employed in the defendant street railway company’s car depot to recover damages for personal injuries sustained by him in consequence of the falling of a platform elevator while he and a number of other workmen were pushing a car therefrom, the defendant claimed that the accident was due to the breaking of a gear wheel which formed a part of the machinery of the elevator, and that such breaking resulted from a blowhole, the existence of which could not possibly be discovered by any known process of inspection or examination.
    It appeared, however, that, in addition to the blowhole, there was an old crack in the wheel discoverable from the surface, and the evidence was sufficient to warrant a finding that the breaking of the wheel was due to the existence of the crack as well as to the existence of the blowhole. The existence of the crack could readily have been detected by the use of a hammer,, and one of the defendant’s witnesses testified that, although he was in the habit of examining the machinery of the elevator each week, he had not applied the hammer test to the gear wheel for more than a year before the accident occurred.
    
      Held, that, under the circumstances, the duty of inspection was cast upon the defendant, and that the evidence was sufficient to warrant a finding that the work of inspection had not been adequately done;
    That, it appearing that it was necessary for the defendant’s employees to go upon the elevator for the purpose of removing the cars therefrom, the court migh properly refuse to charge that the omission of “other safety appliances or clutches from a freight elevator, which was not used or constructed for carrying passengers, from riding on which the railway company excluded its servants and upon which servants had no reason to be, does not establish negligence on the part of the railway company.”
    Appeal by the defendant, the Metropolitan Street Railway 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 1st day of March, 1902, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 10th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Charles F. Brown, for the appellant.
    
      Wa/yland F. Benjamin, for the respondent. X
   Patterson, J.:

On the 5th of November, 1898, the plaintiff was an employee of the defendant and worked in a building on Second avenue and Ninety-sixth street in the city of New York, which was used as a depot for the storage of cars. In that building was an elevator for hoisting cars to the upper floors. It was a platform elevator, thirty feet long, or more — there were tracks on the platform, which connected with tracks on the floors of the building. On the date mentioned, the plaintiff was ordered by the defendant’s superintendent to assist in pushing a car from the track on the elevator to the track on the second floor of the building. While engaged in that work and after the car had been moved some six or eight feet, the elevator fell, precipitating the plaintiff and other men who were also on the platform into the cellar below. The plaintiff sustained injuries, and having brought this action, recovered a verdict at the trial, and from the judgment entered thereon and from an order denying a motion for a new trial, the defendant appeals.

The elevator was attached to cables at its four corners. It is alleged in the complaint that the cause of its fall was the breaking of a cable at one of the corners and that such cable did break was proven. This elevator was operated from what is called a worm shaft on the east side and at the center of the elevator; that, in turn, operated a gear wheel and the gear wheel operated a shaft running the entire length of the elevator, some thirty or thirty-two feet. At each end of the shaft was a pinion which worked in a bevel gear on a shaft running at right angles to the one on which the cable gears were fixed. On the bevel gear were two drums, located at each end of the elevator on the south side and on the north side. On each drum was a steel cable which ran up to the next story, over a shift pulley, and down, and was attached to the base of the elevator — the floor of the elevator.

The claim of the plaintiff, as stated in the complaint, is that the defendant was negligent in failing to furnish a reasonably safe apparatus upon which he was required to work, the allegations being that the elevator and machinery were defective and unsafe and were unprovided with proper motive power or appliances for safety, and were insecure and unsuited for the purpose to which the elevator was applied, and that it had no brakes, clutches, claws or any appliances to prevent it from falling, or to insure its safety while being used as an elevator; and the elevator and appliances, and especially the chain supports and wheels thereof, were in a broken and defective condition, and not of sufficient strength to support the weight usually put thereon; that such defective construction and condition were well known by the defendant to exist, and were allowed so to remain, but the plaintiff: was wholly ignorant thereof.

The proof made by the plaintiff in his case in chief was to the effect only that the elevator fell in consequence of the breaking of one of the cables, and the contention made by him at the trial was, and now is, that proof of the breaking of the cables, and of the fact of the elevator falling, was sufficient to throw upon the defendant the obligation of explaining the occurrence and the cause of the fall in such a way as to exonerate it from liability.

It is unnecessary in this case to determine whether the maxim Tes iq>sa loquitur applies, for if it does not, although the proof on the part of the plaintiff may have been insufficient when his case in chief was rested to entitle him to a verdict, yet, before the whole case was closed there was evidence introduced which required the submission of the issues to the jury for determination. The defendant gave evidence to show that the cause of the falling of the elevator was not the breaking of a cable — and satisfactorily proved that the mere fact of one of the four cables breaking (the others holding fast) would not be sufficient to cause the fall; that if one cable alone broke, the elevator would merely sag a distance of some six inches at the corner at which the cable parted. But the defendant’s evidence went further, and the attempt was made to show that the real cause of the falling of the elevator was the breaking of the gear wheel, and that such breakage was the result of there being in that wheel what is called a blowhole, a hidden defect in the metal of which the wheel was composed, and which could not possibly be discovered by any known process of inspection or examination.

If that were true, the defendant would not be liable—but, in addition to that proof, it was brought out by the plaintiff that the gear wheel was defective in another respect, and one which could readily have been detected by inspection, namely, that there was a crack in the wheel observable from the surface of the wheel; that it was an old crack; that it was of such a character as to affect the strength of the wheel, and the contention was made that, assuming the fall to have been occasioned by the condition of this gear wheel, it was for the jury to say whether its breaking was not caused by the crack as well as by the existence of the blowhole.

The elevator had been in use for some eleven years. The wheel was produced in court on the trial of the action, and was there for the inspection of witnesses, the jury and the court. The existence of the crack was patent, and indications upon the wheel itself gave evidence that it was not of recent origin. There was enough before the jury to enable them to pass upon the issue as to the cause of the accident being the unsafe condition of the wheel. The attitude in which the case stood at the time of its submission to the jury was this : The defendant claimed that it had exonerated itself from liability by showing the existence of this hidden and undiscoverable defect, to which the fall of the elevator could be attributed. On the other hand, the plaintiff claimed that even if the cause of the falling of the elevator was not the breaking of the cable but the breaking and falling of the wheel, he had shown a plain defect in the wheel readily discoverable, to which the breakage could be assigned, and thereupon the court left to the jury certain specific questions of fact: 1. “ Did the elevator fall solely because of the existence of the blowhole in the hub of the bevel gear wheel ? ” To which the jury answered, “No.” 2. “If no, were there other defects which reasonable inspection would have disclosed which produced the accident ? ” Answer, “ Yes.” 3. “ If yea, was there such reasonable inspection ? ” Answer, “ No.”

It is unnecessary to consider any of the questions of law which have been discussed on this appeal. It is conceded that if the existence of the blowhole was the sole cause of the accident, the defendant is not liable. It must further be conceded, as a general proposition, that where an appliance or machine, obviously safe, has been in daily use for a long time and has uniformly proven adequate and safe, its use may be continued without the imputation of imprudence or carelessness; but if the crack in this gear wheel was a defect which could have been detected by inspection and was the proximate cause of the accident, then the elevator, with its appurtenances, was not an obviously safe apparatus, and, in this case, the duty of inspection was cast upon the defendant. Here was a lift or elevator used for raising and lowering street cars, weighing some tons; men had to go upon it to push those cars from it upon the tracks on the floors of the building in which the cars were to be stored; it required from time to time repairs, and certain repairs were put upon it. It had fallen before. Indeed, the defendant undertook, through its servants, the work of inspection, but the jury must have found from the evidence that there was no reasonable inspection. The existence of the crack could readily have been detected by the use of a hammer. One of the defendant’s witnesses testified that he was in the habit every week of going around the elevator and looking at it, and going upon a ladder and observing the wheels and the drums and oiling the machinery, but that he did not use the hammer test on this wheel during more than a year before the accident occurred from which the plaintiff suffered. That was, as the jury properly found, inadequate inspection.

The whole subject was one for the determination of the jury upon the issues of fact as they were submitted by the court.

There are no exceptions requiring consideration, unless it be that to the refusal of the trial judge to charge the thirtieth request of the defendant. There was some evidence given with respect to the absence of safety clutches or appliances upon this elevator, and the defendant claimed that the construction of the apparatus was such that it could be operated in safety without those appurtenances which are generally called safety appliances. The court was asked to charge the jury that the omission of “ other safety appliances or clutches from a freight elevator, which was not used or constructed for carrying passengers, from riding on which the railway company excluded its servants and upon which servants had no reason to be, does not establish negligence on the part of the railway company.” That request was properly refused, for it contains elements which in no way enter into the case. This was not an elevator from riding on which the railway company’s servants were excluded, or upon which its servants “ had no reason to be.” On the contrary, servants of the railway company were required to be on the elevator, for it is proven that the way of removing the cars from the elevator was by the company’s servants going upon the elevator for that purpose.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  