12 A.D. 366 | N.Y. App. Div. | 1896
The “ danger ” notice which was placed upon the elevator need not be considered, for the reason that it is admitted that Boess, the
This leaves for consideration the main question on this appeal, viz., the defendant’s negligence. This, it is urged, consisted in the failure to provide well-known safety devices, and, secondly, the failure to properly inspect the machinery and the shaft pinion.
As to the former, the master is only bound to furnish such appliances as are in common use and are reasonably safe. Here it is shown that the elevator was equipped with safety appliances, such as were in common use upon freight elevators. This is not governed by the rules applicable to a common carrier of passengers.
The liability of the defendant to answer for Boess’ death must, therefore, be placed, if at all, upon the failure to properly inspect the machinery, shaft and pinion. Upon that question the solution must be found in the answer to be furnished by the evidence as to whether the defendant failed in its duty to properly inspect, and whether such failure was the proximate cause of the accident. If the question rested solely upon inspection, then we think there was evidence in this case from which it could be inferred that the duty resting upon the defendant was not fully discharged, it appearing that for a long period, at least for four years,, the shaft and pinion were not inspected because, as stated by the engineer, to obtain an inspection it would have been necessary to take off the gear wheel, and this would be attended with so much trouble —■ it beingnecessary for that purpose to separate the shaft and pinion from the drum and take out the key which held the gear wheel tight on the shaft or pinion, which would involve two or three days’ work—that it was never attempted. If from the evidence, however, it appears that, even though such inspection were had it would not' have disclosed the flaw in the shaft or pinion which caused the break, then the failure to. inspect cannot be regarded as the proximate cause of the injury. In other words, if it appears that had the defendant
As the evidence shows, the flaw was in the center and was produced by an improper amalgamation of the metal, and was, therefore, inherent therein at the time when the elevator was constructed, and for some time it had been gradually growing from the center towards ¡the surface, but had not, in the way of any crack or seam, produced' any indication from which by careful inspection the existence of' the flaw would have been discoverable. It cannot be held that the defendant was insurer against or hound to. know, of such inherent‘and'.undisco verable defect. Having employed competent persons to construct the elevator, it had a right to assume that the duty winch was- placed upon them of furnishing proper and safe material -had been discharged. There being then but one inference that can be logically adduced from the -evidence, namely, .that had the defendant inspected the pinion and shaft within -a reasonable time prior to the accident, it would.not have discovered the flaw, it follows that the violation of the defendants. obligation to inspect was in nó way related to or connected with the accident.
Our conclusion, therefore, is that the dismissal of the complaint was right, and that the judgment entered thereon must he aflirmed, ■With costs. ■ '
Yan Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.
. Judgment aflirmed, with costs.