24 N.Y.S. 403 | N.Y. Sup. Ct. | 1893
The defendant was the owner and operator of a paper and pulp mill. The mill was three stories in height, and stood upon a steep bank. The upper story of the mill was on a level with the street. Communication between the different stories of the building was had by means of an elevator passing up and down through a shaft or well. There was no trap or other door, at the time of the accident, to close the well on the upper floor, through which the elevator passed. On the upper floor this well was closed on three sides. On the remaining side were two bars. The upper bar was fastened to the posts of the well. The lower bar was one that could be moved backward and forward, through clasps attached to the posts of the well, and when in position was
“(1) Did not the deceased know the manner in which the first or street floor of the mill was used, and the purpose for which it was used? Answer. Yes. (2) Did not the deceased know that any empty barrels were permitted to stand' temporarily on the street or first floor? A. Yes. (3) Did not deceased, on the day of the accident, at any time, see the empty oil barrel standing on the box by the post, near the elevator? A. Yes. (4) If the lower bar had been in position across the elevator well, would the barrel have fallen in? A. No.”
There is evidence to sustain all these findings by the jury, They relieve the case of a number of the questions presented when it was formerly before this court. The uncontradicted evidence shows that the intestate must necessarily have knowm that there was no
The appellant strenuously insists that the judgment should be reversed, and a new trial granted, by reason of an alleged error of the court, in its charge to the jury, as to the fact of the nonobservance of section'8, c. 462, of the Laws of 1887, which provides, in substance, that the owners, agents, or lessees of buildings having elevators must provide trap or automatic doors to such elevators, so constructed as to open and close by the action of the elevator in ascending and descending. In relation to that statute the court charged as follows:
•‘This statute itself has no sort of bearing upon the case, if you come to the conclusion—and I charge you, as matter of law, that you must come to the conclusion—that plaintiff’s intestate did know that this elevator was not provided with automatic doors. So that, I apprehend, when you come to the discussion of the case, you will lay aside that provision of law, because it has no bearing, and cannot lead you to any proper conclusion, and ought not to have any weight in the jury box or jury room. It is not an element in this case. It is an undisputed fact in the case that deceased did know the manner in which the elevator was constructed. He knew what protection there was, and he accepted the situation—accepted the employment— and did what he was doing on the day he was killed with the full knowledge of those things, so far as the protection against danger, which defendant had made to the elevator, is concerned.”
I do not think this charge constitutes reversible error. In substance, it states the rule applicable to this case correctly. The statute was enacted for the benefit of employes. Any one injured in consequence of it not being complied with has, undoubtedly, a right of action therefor. City of Rochester v. Campbell, 123 N. Y. 405-414, 25 N. E. Rep. 937; Willy v. Mulledy, 78 N. Y. 310. The action is not brought upon the statute, but is founded upon defendant’s alleged negligence. The violation of the statute, by not furnishing doors to the well hole, is undoubtedly evidence of the negligence charged, but it does not follow from that that the charge was erroneous. The duty prescribed by this statute is not more or greater than the common-law duty of an employer to his employes, to provide a safe place in which, and proper machinery with which, to work; and the defendant’s liability to the person in
The court was correct, also, in charging the jury that they must come to the conclusion that plaintiff’s intestate did know that the elevator was not provided with automatic doors. That it was not so provided was perfectly obvious and apparent, uncontradicted and •undisputed. It was a matter the plaintiff’s intestate could not help knowing, and a specific finding to the contrary by the jury would have been properly set aside by the court as one not only contrary to the evidence, but wholly without evidence to support it. The findings of the jury were sustained by the evidence, and the case was properly submitted by the court, and the judgment should therefore be affirmed, with costs. All concur.