
    Lisette Deebach, as Administratrix, etc., of Charles C. Deebach, Deceased, Respondent, v. Robert Gair Company, Appellant.
    Second Department,
    March 10, 1911.
    Blaster and servant—negligence — death, caused by implement which fell down elevator shaft—failure of fellow-servant to close door— failure to make rules.
    A master is not liable in a qommon-law action for the death of a servant who, while standing on the platform of an elevator, was killed by an iron roller which fell down the shaft owing to the failure of a fellow-servant completely to close the door of the elevator shaft on the floor above.
    Mor can the master be charged with negligence in failing to make rules and regulations respecting the closing of the elevator doors, for a failure to make rules is not proof of negligence unless it appear from the nature of the business that the master in the exercise of reasonable care should have foreseen the * necessity of such precaution.
    Thomas, J., dissented.
    Appeal by the defendant, the Bobert Gair 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 5th day of April, 1910, upon the verdict of a jury for §5,500, and also from ■ an order entered in said clerk’s office on the 7th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      E. Clyde Sherwood [Frank Verner Johnson and Edward J. Redington with him on the brief], for the appellant.
    
      Martin T. Manton and Burt L. Rich, for the respondent.
   Jerks, P. J.:

This action was submitted to the jury upon the common-law liability of master to servant for negligence. The servant in course of his work was in a lift of the master’s building when he was struck and fatally injured by a piece of iron pipe that fell down the shaft of that lift. For several days and on that day the master was moving out certain heavy machinery. At the time in question his servants were moving parts of the machinery across the sixth floor to be placed on the lift. These parts were moved upon pieces of circular iron pipe whose purpose was indicated by their name, “rollers.” There is no doubt that one of these rollers, not then in immediate use, fell down the shaft and struck the intestate of the plaintiff, who was on the lift which was then at the ground floor of this building. The plaintiff contends that this roller was put in motion, so that, it rolled across the floor, by the vibration of the building caused by machinery working therein, while the defendant contends that one of its servants, while moving a truck and walking backwards, struck this idle roller with his foot. The version of the plaintiff rests upon conjecture; that of the defendant is supported somewhat by the testimony of the servant. And as qach floor was protected by a door that closed the shaft in completely, the casualty was due to the fact that the door was open. The usual custom of giving notice of the need of the lift was to open a door to call to the liftman. The plaintiff’s witness, Geoffrey, a foreman of machinists in charge of this moving, testifies that they had moved a piece of machinery within twenty feet of the shaft when he opened the door, called for the lift, gave the door a shove and returned to the work of moving. He also testifies that the liftman answered that he would come right away; that the lift was then between the third and fourth floors on its way down, and Geoffrey surmises that the liftman intended to answer a call from below and then to ascend. And Geoffrey also testifies that in about five minutes his attention was attracted to the elevator shaft; that he went to it to find that the door was open about halfway — some three feet — and he is nearly positive that the accident had occurred in the interval. In answer to a question by the court if one closed the door whether it would “ stay closed or open of itself,” Geoffrey testifies: “ Hardly, they would not open by themselves, because the rollei’s—they were sliding doors, and the rollers pitched down toward the closing. * * * The incline was * * * always toward closing. Q. To open it you had to push back ? A. Tes, sir. Q. How did the doors stay, on a three-foot jar? A. Sometimes it would, * * * but want a little start of the hand to close back, * * * sometimes they wanted a good heavy pull to close them up.” Again, when asked: “ What prevented the door from closing when you gave it a shove?” he answered: “Well, may be the weight of itself, * * *. There is quite a weight on a six-foot door like that. You have to put on a pull if you want to close it altogether — put all your weight on it.” He could not swear that he closed the door. In his own language : I gave the door a shove — took hold of the knob and shoved her to close her and walked away.” There is no contention that the door was improper or defective or that Geoffrey was inefficient. The casualty was due to this failure of Geoffrey to close up the door. But this omission Avas in a detail of the work and, therefore, the defendant was not liable therefor. (Filbert v. D. & H. Canal Co., 121 n. Y. 207; Geoghegan v. Atlas Steamship Co., 146 id. 369 ; McCampbell v. C. S. Co., 144 id. 556.)

And I think that the learned court erred in submitting the question of liability for an omission to make rules and regulations. .The work of closing this door was certainly not of a complex character, and Geoffrey shows that he fully understood what he should have done to close it fully. In Morgan v. Hudson Biver Ore db Iron Co. (133 N. Y. 666, 670) the court say: “Even if it could be. shown, after the accident occurred, that it might have been prevented by adopting and enforcing some suitable rule, that would constitute no proper test of liability. The failure to adopt rules is not proof of negligence, unless it appears from the nature of the business in which the servant is engaged that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity of such precautions.” In Berrigan v. N. Y., L. E. & W. R. R. Co. (131 N. Y. 582, 585) the court say: “ In the absence of some proof on the part of the plaintiff that such a rule was in operation by other roads or of persons possessing peculiar skill and experience in the management and operation of railroads to the effect that such a rule was necessary or practicable under the circumstances, or unless the necessity and propriety of making and promulgating such a rule was so obvious as to make the question one of common experience and knowledge, the court is not warranted in submitting such a question to the jury.”

I think, therefore, that the court should have charged the defendant’s request, “ If at that time when Mr. Geoffrey opened the door and imperfectly closed it, if such is found to be the case, the piece of pipe rolled down the elevator shaft, that then the defendant is not liable.”

The judgment must be reversed and a new trial must be granted, costs to abide the event.

Burr and Carr, JJ., concurred ; Thomas, J., dissented; High, J., talcing no part.

Judgment and order reversed and new trial granted, costs to abide the event.  