
    Hansen v. Schneider et al.
    
    
      (Supreme Court, General Term, First Department.
    
    October 24, 1890.)
    Negligence—Evidence.
    Plaintiff, a servant of defendants, was injured while riding on a freight elevator in a building leased in common by defendants and others. The elevator was not supplied with a safety-clutch, which would have prevented the accident, but defendants were not shown to have been aware of this fact, and there was no proof that the absence of the clutch was so conspicuous as to be readily seen, defendants having only moved into the building on the day of the accident. A sign was up at the street entrance forbidding persons to ride in the elevator, and it did not appear that defendants in any way sanctioned the use of this elevator by their employes. Field, that defendants were not chargeable with negligence, and that there could be no recovery. Bbady, J., dissenting.
    Appeal from circuit court, Hew York county. •
    Action by Charles Hansen against Charles Schneider and others to recover damages alleged to have been sustained through defendants’ negligence. From a judgment entered on a nonsuit, plaintiff appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Sackett & Bennett, (John Brooks Leavitt, of counsel,) for appellant. Theall & Bean, (Austen G. Fox, of counsel,) for respondents.
   Daniels, J.

The plaintiff, a Dane, came to this country in 1882, and in December, 1885, he went into the employment of the defendants at their factory, which was at 158 West Twenty-Seventh street. He remained in that employment until the 1st of May, 1886, and on that day they commenced to move into the fourth and fifth floors of the next building. The plaintiff was directed to assist, and did so by sweeping away dust, and gathering it in barrels. He and another person in the employment of the defendants placed the barrels upon the floor of an open elevator to take them to the street, where they were unloaded, and the barrels returned to the elevator. The plaintiff and the person with him also went upon the elevator, and the latter endeavored to start the elevator to go to the upper floors again, but the usual efforts for that object proved ineffectual, and then it was discovered that a brick had become wedged between the elevator and a wall, rendering it immovable. The other person, with the knowledge and at the suggestion of the plaintiff, then left the elevator to remove the brick, and he did remove it, when on account of the rope having been slackened in the previous effort to start it, the elevator at once fell into the basement, a distance of about eight feet, producing serious and lasting injuries to the plaintiff, who had all the while remained in the elevator. This elevator had not been supplied with a safety-clutch, which was described to be a bolt, or ball, connected with a heavy spring, kept in tension by a rope, which, when slack or broken, permitted the spring to shoot the bolt into the slides in the side posts on which the elevator is guided, locking it there firmly and immovably; and it was l‘or the want of this appliance that the defendants were prosecuted to recover indetnnity for the injuries. But the defendants were not shown to have been aware of the fact that the elevator had not been provided with this or any other clutch, and the premises had. not been so long in their possession, or subject to their inspection, as to subject them to the charge of negligence for not ascertaining that this was its condition. Their lease was dated the 13th of February, 1886, but their term or right of occupancy did not commence until the day of the plaintiff’s injury, and there was no proof that the absence of the clutch was so obvious or conspicuous as to be readily seen by persons examining the lofts for the purpose of hiring, which is the most they may be assumed, to have done, and if that were not the fact, then the defendants could not be legally charged with, negligence on account of the elevator not being supplied with a clutch. " In this important respect this case differs from those specially relied upon to support the appeal; for, in Corcoran v. Holbrook, 59 N. Y. 517, the elevator was out of repair to the knowledge of the general agent, which the court held to be imputable to the defendants, rendering them liable to the charge of negligence. In Stringham v. Stewart, 100 N. Y. 516, 3 N. E. Rep. 575, the defendant was clearly liable for the condition in which the elevator had been maintained, and allowed to be used; and in Avilla v. Nash, 117 Mass. 318, the defendant was liable for allowing a defective elevator to be used, although that had been forbidden by a rule, but which was systematically disregarded to the knowledge of the defendant. There had been no such use, nor, indeed, any use, of this elevator by persons riding in it, to, the knowledge of either of the defendants, and at the left side of the street entrance to the elevator a sign was up forbidding persons riding in this elevator, which was sufficiently placed, and large enough in its lettering, to be observed by persons proposing to use the elevator; and although the plaintiff was a Dane, and not acquainted with the English language when he came into the country in 1882, it may be assumed, in the absence of evidence to the contrary, that be had become sufficiently conversant with the language to enable him to read and understand this sign on the 1st of May, 1886. By the lease to the defendants the elevators were to be used for freight only; and the fact that another elevator had been used in the other building by the workmen passing up and down furnished no ground for assuming that this one might be so used, especially as this restriction of its use had been inserted in the lease. The general rule undoubtedly is, as the plaintiff’s counsel has insisted upon it, that the employer is bound to observe reasonable care and attention in providing for the safety of the persons employed in using the apparatus and machinery provided for them. Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. Rep. 1044. But in this case the evidence did not prove that the defendants had omitted the observance of this care, or that they knew of or in any manner sanctioned the use of this elevator by their employes. There were no facts disclosed at the trial which would have sustained a recovery by the plaintiff. The judgment should therefore be affirmed.

Van Brunt, P. J., concurs. Brady, J., dissents.  