
    Addie Owen, as Administratrix, etc., of Convus Owen, Deceased, Respondent, v. Retsof Mining Company, Appellant.
    Fourth Department,
    May 1, 1907.
    UTegligenc.e — injury by fall of elevator in mine—judgment for plaintiff affirmed — when no question of contributory negligence.
    When the issue is whether the fallof an elevator was caused by'a defective cable for which the master was responsible or whether it was caused by the fall of a heavy “billy” for which the' master was not responsible and the jury find that the accident was caused by a defect in the cable, there is no issue as to the contributory negligence óf a servant, who was merely riding in the elevator.
    Evidence .in an action to recover damages for death caused by the fall of an elevator in a mine considered and held, to raise questions for the jury.
    Spring, J., dissented.
    
      Appeal by the defendant, the Ketsof Alining Company, from an order of the Supreme Court, made at the Livingston Trial Term and entered in the office of the clerk of the county of Livingston on the 1st day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes, after a verdict in favor of the plaintiff for $4,500.
    
      Putney, Twombly db Putney and Maulsby Kimball, for the appellant. ,
    
      Harlan W. Pippey, for the respondent!
   Williams, J.:

The order should be affirmed, with costs.

The action-was brought 'to recover damages-for personal injuries, causing deatlq alleged to have resulted from the defendant’s negligence. The action .was tried originally in January, 1904, and-resulted in a verdict for' the plaintiff. Upon appeal to this court the judgment was .reversed and a new trial granted upon the ground that the verdict was contrary to the évidence. (102 App. Div. 130.) The case was again tried in January, 1906, and again resulted in a verdict for the plaintiff. This appeal is talce'n to review the second trial.

The deceased was an employee of the defendant-, and on January 30, 1903,. was descending shaft Uo. 2 leading into defendant’s mine, when the cable attached to the bucket in which he was being lowered broke. The bucket dropped to the bottom of the shaft and deceased was killed.. The principal question tried was: What caused the cable to break? Was it defect in the cable for which■ the defendant was sought .to be made liable, dr was it by reason of the billy having become caught in the shaft, and subsequently dropping and tearing, the cable apart, for which the defendant could not be held liable ? The billy was a heavy construction above the bucket that ran down the shaft- upon guides fastened on opposite sides thereof, and the latter question is whether this billy was detained on its way down for a • little time from some cause, and then, becoming released, dropped upon" the rubber buffer just above the car and then broke the cable, which if free from defects could not resist the power thrown upon it, and thus permitted the. fall of the bucket. The- law of the case, as held by this court upon the first . appeal, and as the jury were instructed upon the last trial, was that the plain tiff, in order to charge the defendant with negligence, causing the death, must prove to the satisfaction of the jury, not only that the cable broke, but that it was the result of defects in the ■ 'cable- itself, causing it to separate, and not the result- of a hl‘ow from the billy Upon a reasonably sound cable. Upon the former appeal the court. held that the plaintiff had failed on the first trial to meet this issue, and that the verdict in her- favor was,. therefore, contrary tó the evidence. We are to consider now whether, upon .the second trial,, the evidence was. sufficient to take the. case to the jury, and whether this last verdict was contrary to the evidence given on this trial. A reference to the opinion of this- court on the former appeal indicates that it was there concluded that -the plaintiff had not met the burden of proving that the cable was defective. We cannot say what the evidence' on the first trial upon this issue was because that record is not before us, and this record .does not show what the evidence there was. • It is claimed by plaintiff, and conceded.by defendant, that more or less new evidence upon this issue was given on the second trial, and counsel here discuss’ this new evidence and its value, the credibility of the witnesses, and the contradiction thereof by other evidence and witnesses.. The justice on this trial regarded the whole evidence here as. sufficient to take the .question to the jury and submitted it to them very fully-and fairly,, referring to and discussing such evidence. If we-are to judge of what.the evidence given on the' first trial was by the statement thereof made in .the opinion on the former appeal, and which evidence was there held to be insufficient, we -must certainly conclude that an entirely different case was made as to this issue on this trial. We conclude-that .there wa's . ■ evidence upon this trial authorizing the jury to find the cable defective, and that such finding was not so far contrary to the evidence as to warrant a- reversal of this order upon that ground. We have examined and considered such evidence. It would not be possible within the limits of an- ordinary opinion to discuss- the'same in detail.

The court held upon the former appeal, and the jury was substantially cliai-ged .on this trial, that in order to charge the- defendant with negligence causing -the. death, the plaintiff must show that the accident happened- in the. manner claimed by her,, and if the evidence indicated with greater or egual probative force- that it was caused by the dropping'of the billy, the plaintiff could not recover, and'this court concluded that the plaintiff failed in the first trial to meet this issue, and that the finding of the jury in this regard was contrary to the evidence. Practically the same suggestion may be made as to this question' that we have made as to the defective cable. If we are to judge of what the evidence there was on this subject, by the statement in the opinion, we must say an entirely different case was presented on this trial. Some' evidence there given by the plaintiff must have been omitted, or, if given at all, was presented by the defendant rather than the plaintiff. Much new evidence was given, very likely, upon both sides, and the trial justice, with the opinion on the former appeal before him, regarded the evidence here as sufficient to take this question' to the jury. He charged the jury fully and fairly on the question referred to and discussed the evidence, and after the verdict had been rendered, refused, by the order appealed from, to set the verdict aside. After reviewing the evidence ourselves and considering the argument of counsel, we conclude, without discussing the evidence in detail, that this question was fairly one for the determination of the jury and that we ought not to set the verdict aside on the ground that their finding was contrary to the evidence. We .do not quite see how any question of contributory negligence arose_ in the case. It is suggested that ¡the deceased should have signalled to the engineer when the billy stuck in the downward passage, but if the fall of the billy caused the accident, the defendant could not-be charged with negligence and the. jury would not reach the question of contributory negligence at all. The defendant’s negligence could only be predicated upon a defective cable parting by reason of such defects and the absence of" any blow by the billy. If such was the conclusion we are unable to see how the deceased could be guilty of any contributory negligence. There seems to be no exception calling for a reversal of the order, and we think no other question need be considered here. The case has been twice tried with the same -result — one favorable to the plaintiff. We think there should be an affirmance of the order.

All concurred, except Spring, J., who dissented.'

Order affirmed, with costs.  