Boess v. Clausen & Price Brewing Co.

42 N.Y.S. 848 | N.Y. App. Div. | 1896

O’BRIEN, J.

The “danger” notice which was placed upon the elevator need not be considered, for the reason that it is admitted that Boess, the decedent, ran the elevator, and that he had a perfect right to be upon it. Nor need we trouble ourselves with the question of contributory negligence, because, upon the evidence, it cannot be said, as matter of law, that the decedent was negligent in allowing the other employés engaged with him in handling the meal to go up on the elevator, it appearing that that had been done frequently with the knowledge and consent of the officers and superintendent of the defendant corporation.

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 arid 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 being necessary 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 inspected in accordance with its duty, and if upon such inspection the defect would not have been apparent or discoverable, then, clearly, inspecting would not have avoided the accident. 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 bound to know of, such inherent and undiscoverable defect. Having employed competent persons to construct the elevator, it had a right to assume that the duty which 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 defendant’s obligation to inspect was in no 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 be affirmed, with costs. All concur.