
    Thomas H. Stringham, Resp’t, v. Cornella M. Stewart, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Master and servant—Duty oe master as to kind or machinery FURNISHED.
    A master is not bound to furnish tbe best known conceivable appliances. • He is bound to furnish such as are reasonably safe, and to see that there is no defect in those which his employees must use.
    2. Same—Test of—Rules.
    The test is not whether the master omitted to do something he could have done, but whether, in selecting tools and machinery for the use of his employees, he was reasonably prudent and careful; not whether better machinery might have been obtained, but whether that provided was in fact adequate and proper for the use to which it was to be applied. These rules are not violated when such machinery becomes unsafe, only when negligently or carelessly used.
    3. Same—Servant takes risk of negligence of co-servant.
    A servant, when engaged in work with others, takes the chances, not only of his own negligence, but of the negligence of which his fellow servants may be guilty, and cannot recover from a common master damages in respect to-the negligence of a fellow servant.
    é. Same — Negligence — What facts do not show negligence of MASTER.
    The defendant was owner of a storehouse, having therein an elevator moved by steam, and operated through an engine controlled by an engineer The plaintiff was employed as a laborer, and while in the warehouse removing a car from the platform of the elevator it was given an upward movement which continued until striking against a beam, the rope by which it was suspended broke and the platform fell to the ground floor-carrying the plaintiff and injuring him. The elevator was intended as a freight elevator only. It had been used for two years before the accident causing no harm, and complained .of by no one, and continued in use-for several years afterwards. There was nothing to show that when used with ordinary and reasonable care, any harm or mischief would result' from it. Held, that the facts bring the case within the rule than when an appliance or machinery, not obviously dangerous, has been in use for a long time and has uniformly proved adequate, safe and convenient, its use may be continued without imputation of imprudence or carelessness.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor the plaintiff, entered upon a verdict of the jury rendered at circuit.
    
      Horace Russell, for app’lt; A. H. Daily, for resp’t.
    
      
       Reversing 1 N. Y. State Rep., 769.
    
   Danforth, J.

The parties were master and servant; the latter, in the course of his employment, received an injury for which he brought this action. He has recovered damages against the exception of the defendant to the submission of any question to the jury, and the judgment in his favor should stand if there is evidence which, upon any just construction, tends to show that the defendant had committed any negligence to give-occasion to the hurt. If not, the law affords to the plaintiff no remedy.

It appeared that the defendant was the owner of a large farm, and in connection with it, a store-house, having therein an elevator moved by steam and operated .through an engine controlled by an engineer. The plaintiff was in his employ as a laborer, and while in the warehouse removing grain from the platform of the elevator, it was given an upward movement which continued until striking against a beam, the rope by which it was suspended broke and the platform fell to the ground floor, carrying the plaintiff, and hence his injury.

Did this happen by reason of any defect in the original construction or its subsequent condition, or through the negligence of the engineer in operating the machine ? Upon the first branch of this question the learned trial judge instructed the jury that “the defendant had a right to use in her store-house any elevator and operating machinery she chose, provided she exercised reasonable care and prudence in having them safe and suitable; that she was not bound to use the most approved machinery or appliances in that business,” and as to the question in hand he said, ‘ ‘ if the machine was insecure through carelessness on the defendant’s part she would be liable, but that the operating of the machine was strictly the duty of a fellow servant, and for negligence on his part she was not responsible. The action upon a former appeal was before this court (100 N. Y., 516), but upon a different record. We were then bound by a concession which narrowed the issues to those relating to contributory negligence on the plaintiff’s part and excluded any discussion as to the negligence of the defendant to furnish safe and adequate machinery for the performance of the work in question. Moreover, the facts established upon the trial since had, and to review which this appeal is brought, makes this a new case by presenting for our determination the very question then withheld, and which upon the former trial was left unanswered, the defendant on that occasion making no attempt to establish the safety of the elevator’s construction, but relying for a defense upon testimony tending to show that in using the elevator the plaintiff- was a mere volunteer, taking upon himself the risk of injury, and by his own conduct contributing thereto. As to that ground the defendant is now silent.

Upon the other, the one now presented, we think the appeal should succeed. The complaint charges that the elevator and machinery were defective in their construction, in that they were unprovided with proper appliances-for safety and were insecure and unsuited for the purpose to which they were applied, and, moreover, that the engineer was incompetent to perform the duties assigned to him. No fault is now found with the capacity or skill of' the engineer, and the argument in behalf of the respondent and the printed briefs submitted in his behalf, attribute the accident to a defective machine or appliance, first, in failing-to have a proper space overhead; second, in failing to have any safety clutches or automatic appliances to guard against the fall of the elevator if the rope broke; or, third, a device by which the engineer could ascertain where the-elevator actually was in relation to the floor at which he-wished to stop it. On the other hand, negligence and want of care on the defendant’s part in regard to the machine, or any of its appliances, is denied, and the accident attributed to a mistake or error of the engineer in the management of his engine.

The verdict, in view of the judge’s charge above quoted, shows that the jury were of the opinion that the machine was defective in its construction, or that it had become defective by reason of the owner's want of care.

Is there any evidence to support that finding? We find none. There is no ground for an apprehension even that the machine, or its appliances, had been impaired by use, or that for any reason it was less safe and efficient than at first. Something is indeed said by one witness as to the rope showing signs of wear or abrasion, but the rope did not break where such condition appeared, nor in the course of its ordinary and proper use, but because it was exposed to an unnatural tension, in resisting, while checked by a. solid beam, the whole power of the engine. If there was-any defect it must have been in its original construction.. Against that supposition the evidence is all one way. A master is not bound to furnish the best of known or conceivable appliances ; he is required to furnish such as are reasonably safe (Burke v. Witherbee, 98 N. Y., 562; Probst v. Delamater, 100 id., 266), and to see that there is no defect in those which his employees must use. Gottlieb v. Railroad Company (100 N. Y. 462).

The test- is not whether the master omitted to do something he could have done, but whether, in selecting tools and machinery for their use, he was reasonably prudent and careful, not whether better machinery might not have been obtained, but whether that provided was, in fact, •adequate and proper for the use to which it was to be applied.. These rules are not violated when such machinery becomes unsafe, only when negligently or carelessly used. King v. Railroad Company, 66 N. Y., 181; S. C., 72 id., 607.

The machinery in question consisted of an elevator and engine and its appliances. The engine, the elevator and its •apparatus were conclusively proven to be of a kind very commonly in use when the one in question was put in, constituting, indeed, the ordinary and customary form of grain •or freight elevators, and in frequent and common use in botéis, breweries, printing bouses and public buildings.

The engine was a single cylinder, ten-horse power, link motion, operated by the use of the lever in starting and stopping, and also with a throttle valve similar to a locomotive, operated by the engineer. It was placed by the side of the elevator, rigged with a double rope of wire, which led directly from the elevator to the drum. The engineer’s place was at the engine facing the drum, and by his evidence and that of others it appears that its motion was entirely and easily under his control. He could stop the elevator at any point he chose by using the lever or throttle valve, and the rope was marked with white paint to indicate the different floors at which it might be required. The whole apparatus—engine, elevator, and appliances— were put in under the direction of a competent manufacturer of many years experience, who testified—and of that there was no contradiction—that he had hundreds then running, similarly constructed, for the carriage of freight and employees in charge of it, among others, miners, “lifting,” he says, “thousands per day.” They were put in, leaving a distance between the cross-beam of the elevator and the pulley-beam above it varying from six inches to three feet. .The greater distance was the safest, but a short distance, when there was a double rope, was safer than a .greater distance with a single rope. And, having regard ito a freight elevator as distinguished from a passenger elevator, the witness for the plaintiff declares that one so constructed and tended was “the usual method, and safe.” The space between the elevator and the beam above was, in this instance, eight inches, but all agree that operated as this was with a double rope, sixteen inches of rope must pass around the drum to raise the elevator to the beam. The elevator was intended as a freight elevator only; it had a platform but no sides. It had been in use since 1879, and for two years at least before the accident, causing no harm and complained of by no one. The same machine was continued in use for several years- afterwards, and down to the time of the trial, with no different result, and there is nothing to show that, when used with ordinary and reasonable care, there was any ground to suppose that any harm or mischief could result from it. This fact brings the case directly within the rule that when an appliance or machine not obviously dangerous has been in ■daily use for a long time, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of imprudence or carelessness.

Assuming the plaintiff’s relation to the elevator to have been that of a passenger, he had ceased to be one at the time of the accident. He was going neither up nor down, nor was he intending to do either. He had been earned safely from the basement to his destination, a track or landing seven feet above the second floor, and thirty feet from the place from which he started; he there got off on the landing. It is obvious that at that point he was perfectly safe, as safe as he could have been in any part of the building, He was on a floor and off the elevator and outside of it. He was there as an employee, dealing with a quantity of oats in a car, and whether he came there by the elevator or the stairs, could have made no difference. It was his duty as a servant to remove the car from the elevator, and he was engaged in the performance of that duty. He stood on the edge of the landing and was pushing the car from the elevator. His body, therefore, was in fact over the elevator, his feet upon the floor or landing, his hands having hold of the car. What then happened with which the construction of the elevator had anything to do? nothing. Asked by his counsel, “What is the reason you didn’t get it (the car) off.” He answered, “He (the engineer) started up too quick.” The elevator was perfectly secure, except- for that act of the engineer. But that act cannot be so construed as to imply a defect in the condition of the machine, or negligence in the master who furnished it, relying upon the co-servant’s reasonable care in its use. The machine was started by means of the lever, which was intended to serve that purpose. It could have been stopped within the space of an inch before it had moved half an inch. Why did he start if, and why didn’t he stop it? Because he either heard, or supposed he heard, a signal to raise the elevator lo a higher floor, or because-through inattention or carelessness, he moved the lever without a signal, and without reflecting that he could have no occasion to go higher. Risk of clanger from this-source was a risk incident to the plaintiff’s service.

It was the act of a co-servant, done within the'range of a common employment. As to this, also, it is apparent that whether the space between the position of the elevator and the beam above it had been six inches or three feet, could have made no difference. The engineer started to go to-another floor, in his mind to go seven feet and upwards;, there was no such floor. The plaintiff was not negligent, but his co-servant was. The act causing his injury pertained to the duty of his co-servant, and the master is not liable for its improper performance. One who engages in work with others takes the chances, not only of his own-negligence, but of the negligence of which liis fellow-servants may be guilty, and it is as well-settled as any rule-can be that he cannot recover from the common master,, damages' in respect to the negligence of the fellow-servant, any more than for damages arising from his own want of care.

In McCosker’s Case (84 N. Y., 77), the yard master negligently at the wrong moment signalled to tlw engineer to back his train, and as a consequence the plaintiff’s intestate' was killed; a recovery in liis favor was reversed upon the principle on which the rule referred to stands. Many other-cases might he cited, but it is unnecessary. The plaintiff has failed to make his case an exception to that rule, and -the judgment in liis favor should be reversed and a new trial granted, with costs to abide event.

Alb concur, except Ruger, Ch. J., not voting.  