
    Patrick Hart, Resp’t, v. Elkan Naumberg et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    1. Negligence—Master and Servant—Liability of master for injury CAUSED BY DEFECTIVE ELEVATOR.
    Where in an action for damages for personal injuries sustained by the plaintiff while in the defendant’s employ. The plaintiff was riding on an elevator, in the defendant’s place of business, and which was used in hoisting goods. There was a notice posted up that the elevator was not to he used, but there was evidence that it continued to be used by the employees of the defendants, and also that the plaintiff was an exception, .and the proper person to go up with it. The drum of the elevator was of sufficient capacity to hold the chains if wound tight, but they did not wind tight, but filled the drum and slipped off one side, tipping the elevator and throwing the plaintiff down the elevator shaft. The failure of the elevator to work as designed, was known to the defendants. The plaintiff knew nothing of the danger and had been told to use it by the engineer, Held, that the elevator was dangerous, and the defendants were liable to the plaintiff for the injuries resulting from its use. Following Stringham v. Stewart, 100 N. Y., 516.
    
      2. Same—Contributoby negli&ence—question for the juey.
    
      Held, that the question of plaintiff’s contributory negligence was one for the jury to decide.
    3. Same—Evidence.
    Evidence that the elevator was not fit or safe to carry prssengers, and had not the appliances to avoid accident was properly admitted. Following Stringham v. Stewart, 19 JST. T. State Rep., 621.
    Appeal from a judgment entered upon the verdict of a. jury, rendered at the Kings county circuit, in favor of the plaintiff, and from an order denying a new trial, on the minutes.
    
      Evarts, Choate & Beaman, for app’lts; C. J. Patterson, for resp’t.
   Barnard, P. J.

The plaintiff was ail employee of the defendant. In March, 1886, he was injured by being thrown from an elevator used by the defendant in hoisting-goods to and from the floors of their building in New York. The action is based upon allegations of neglect by the master to furnish safe machinery for the use of the employee when engaged upon his employment. The injury, it is claimed, was occasioned because the elevator was out of order and unsafe. This was the only question of fact in the case and the evidence is conflicting, not as to the fact of the accident, but as to the, cause of it.

The elevator was a freight elevator and there was a notice posted that- it was not to be used, but the weight of the evidence is that it continued to be used by the employees of the defendants so continuously and openly that it must be assumed that the notice was not intended for the plaintiff to heed. Indeed, there is proof tending to show that he was an exception and was the proper one to go up with it. The accident was occasioned by the elevator tipping so as to be at an angle of forty-five degrees, causing the plaintiff to slide down the elevator hole. There was proof tending to show that when the elevator reached the bottom, for a.' long time previous to the accident, the drum on which the chains rolled up continued to revolve, thus unwinding a turn and a half of the drum and casting the chain loose upon the ground. When the elevator was started the chains wound up irregularly instead of close. The drum was of sufficient capacity to hold the entire chain if wound tight, but if the chain was not wound tight on the drum they would finally fill the drum and then go over on the shaft, and then slip one side of the elevator. This result, caused the accident.

There was proof tending to show that after the accident the chains had got off the drum on the elevator, and in the absence of any other proven cause, and in view of the accident itself, this must be deemed the true cause. The verdict of the jury is final upon the question; there is proof, also, tending to show that this defect was known to the defendant. The engineer had frequently driven the chain straight with a hammer when they wound wrong. Such an elevator is out of order and dangerous and the case falls within Stringham v. Stewart (100 N. Y., 516; 19 N. Y. State Rep., 621).

The defendant could not be relieved by inspection. The elevator was safe when it worked as designed to be worked, but it failed to do so and the master had notice of the failure and continued to use it. The cause is disclosed and a remedy could easily be applied. The question of the plaintiff’s contributory negligence was one for the jury. It is only in extreme cases where the court, as matter of law, determines this question. This was not such a case. The servant had the right to rely upon the performance of the duty by the master. He knew nothing of the danger from the uneven winding of the elevator chain, and he was told to use it as it was, by the defendant’s engineer.

Under these circumstances it was for the jury to say whether the plaintiff violated any duty in using the elevator. Kain v. Smith, 89 N. Y., 375.

The evidence that the elevator is not fit or safe to carry passengers, and had not the appliances to avoid accident, was properly admitted under the case of Stringham v. Stewart (supra).

The judgment should, therefore, be affirmed, with costs.

All concur.  