62 N.Y.S. 364 | N.Y. App. Div. | 1900
The plaintiff sues as administratrix to recover damages for the death of her intestate (her husband), which she claims was caused by the negligence of the defendant. The decedent was killed in an elevator used and operated in a shaftway in a building belonging to the defendant, and it is alleged in the complaint, among other things, that “ the weights attached to certain cables intended to be used in operating said elevator became detached and fell with great and extreme force and violence down said shaftway and upon said plain- . tiff’s intestate and struck him with great and extreme force and violence ‘so that said Walter H. Griffen was then and there and thereby thrown with great violence to the floor of said elevator and
On the 6tli of December, 1898, the plaintiff’s intestate attended a meeting of the directors of the corporation and at the conclusion of the meeting entered the elevator car- to descend from the eighth to the first floor. The car proceeded at a rapid rate, was not stopped at the level of the first floor, but continued some- inches lower -and there seems to' have- struck something under it and rebounded. Before the persons in the car' could leave it, and almost simultaneously with the rebound, there fell into the car from above several oblong pieces of iron, measuring about ten inches in length,' and each weighing some thirty or forty pounds, one of which struck ’the plaintiff’s intestate and he Was almost instantly killed.- The pieces of iron that fell were part of an applk anee connected with the control of. the elevator ear, which appliance was called the counterbalance weight.. Elevators such as that in the defendant’s building are constructed with counter weights at the end of a cable, which revolves about drums in a direction opposite to that in which the car is moving. As the car descends the weights are raised. The effect of a car overrunning a given point in its downward movement is to carry the weights up a distance corresponding to that of the overrun below: The counterbalance weights are arranged in a frame, one oblong, piece upon another,
The facts appearing on the record in this case require us to define the legal relation existing between the owner of this building and elevator and those who, by his actual or implied invitation, become passengers upon such elevator, and in connection therewith to declare the duty and responsibility resting-upon the' owner to such passengers, and to inquire as to the application of a rule of evidence by which it was sought to establish the negligent failure to fulfill sufeh duty. The inquiry relates directly to passengers and not to servants or employees, in respect of whom it was held in Stringham v. Hilton (111 N. Y. 188) that the master is bound to furnish only such appliances as are reasonably safe, to see that there is no defect in those which his employees must Use, and that where an appliance or machine not obviously dangerous has been in constant use for a long time and has always proved adequate, safe and convenient, it may be continued without any imputation of negligence or carelessness on the part of the employer. But in this casé the question is prer sented in an entirely different aspect, and it arises on this appeal
It will be noticed that the trial'judge was careful to emphasize that the assimilation of the duty and responsibility of the owner of the elevator tó that of a common carrier of passengers, or of a railroad company, was predicable only with respect to the- machinery and appliances by which the elevator was moved and controlled. It has been authoritatively held in this State as to the 'surroundings and other structures forming a part of the elevator plant, where not so much danger is to be apprehended as may exist with reference to motive power and control, that the relation referred, to would not be established, because all that could be required is that degree of care which a reasonably prudent man would -exercise. (McGrell v, Buffalo Office Building Co., 153 N. Y. 271.) But in the same cáse the learned judge, delivering the opinion of the court, remarks: “ It may be that as to the machinery, and appliances by which an elevator is moved and controlled in.its ascent and descent, an owner is bound
The charge of the trial judge is almost a verbatim repetition of what was thus intimated, but not explicitly decided, in the foregoing quotation from the MeOrell case. .We think the intimation of the Court of Appeals states the true rule applicable to this case. If such an elevator as that operated and used by the defendant was not a dangerous thing in itself, it is quite apparent that it was something that was constantly liable to become dangerous, and the testimony shows that inspection, general attention and observation were required in order to keep it operating properly, and that such an elevator even when perfectly .adjusted and set in operation will not keep in that perfect adjustment and continue to operate properly for an indefinite jieriod of time. There is just as much reason for holding the proprietor or owner of such an elevator to the highest degree of care in- the maintenance of the operating and controlling machinery of the apparatus as there is in holding the carrier of passengers to the same degree of care. The passenger in the elevator can know nothing of the state of the machinery. He may be able to observe the surroundings, the condition of the car and of the entrances to and exits from it, but while in the car he necessarily confides his person to the care and protection of the elevator proprietor just as a passenger does while in the vehicle of the common .carrier.
The view we t-ake of this subject has its support in authority. In the very well-considered case of Treadwell v. Whittier (80 Cal. 574, 575) the Supreme Court of California passed upon this precise question and held that those who operate elevators in lifting passengers should be treated as carriers of passengers, and that the same duties and liabilities -rest on them as on carriers of passengers by railway or stage coach, and although not insurers of the absolute safety of the passengers, they are bound to the utmost care and diligence of very cautious persons as far as that care and foresight can go, and are responsible for injuries occasioned by the slightest neglect
The duty and responsibility of the defendant being such as is above indicated, the question arises as.to the character and sufficiency of the proof by which the plaintiff undertook to establish negligence of the defendant in the performance of the duty and by which she sought to visit responsibilityupon the defendant ( for that neglect; That question arises upon an exception to an instruction of the trial judge which was given to the jury in the following words : ?£ There is another rule which the plaintiff asks me to call to your attention, and I am going to call to your attention the rule that where an accident happens, which in the ordinary course of business would not háppen if the required degree of' care was observed, the presumption is that such care was wanting, and if you ffnd in this case that this accident was one which in the ordinary course of business would not have happened if the required degree of care was observed, yon have a right to presume that such care was wanting.” This instruction was equivalent, to -charging-the" jury that the maxim res ipsa,' loquitur applied in this case. The judge had already stated to the jury that the requirement of the high degree of care to which the, defendant- was bound was dependent not so much upon the actual apprehension of danger as upon the consequences likely to result from a defect in the machinery and appliances ; and that that high degree of Care was required by reason of the fact of the serious results that might happen in case of a defect in the machinery com nected with the elevator. It is quite apparent, that the charge of the trial judge was made- after careful study and preparation, for the rules he announced for the guidance of the jury are proclaimed.in substantially the same phraseology in several leading Cases. The . maxim. »ies ipsa loquitur as a rule of evidence gives rise to a presump
The argument, however, is made on the part of the defendant that in order to give rise to the presumption something more must be shown, and it is claimed- that the later authorities in this State
These citations plainly and forcibly state all that is contended for by the respondent, and pointedly and accurately declare the rule, which is not impaired by the subsequent remark of the learned judge writing the opinion of the court, that Mr. Thompson, in his work on Negligence, says that “ it is believed ‘ that it is never true, except in contractual relations, that the proof of the mere fact that the accident happened to the plaintiff, without more, will amount to prima facie proof oí negligence on the part of the defendant.’ (2 Tliomp. on Neg. 1227),” which is an inaccuracy, as is pointed out by Mr. Justice Cullen in Jones v. Union Railway (18 App. Div. 269), referring to the leading case of Mullen v. St. John (57 N. Y. 567).
We are of opinion that the plaintiff was entitled to rest upon the presumption of negligence arising out of the fact of the occurrence of the accident in the' manner and from the specific cause shown in those proofs. If the duty and responsibility of the defendant were such as we deem them to have been, the fact of the- occurrence, namely, the killing of the plaintiff’s intestate by the falling upon him of the counter weight of the elevator, presents such an extraordinary condition as to lead directly to the conclusion that prima facie the want of inspection, supervision, care and attention to the machinery induced the accident, which is the equivalent of saying that the accident resulted from negligent omission of that degree of care and vigilance which the defendant was bound to exercise.
In this view of the case the trial judge was not in error in refusing to charge certain of the requests made by the defendant, the rulings upon which are now challenged. It is claimed that even in the view which was taken of the duty and liability of the defendant, the court should have instructed the jury that a presumption of negligence did not arise from the mere fact of the accident itself. As án abstract principle of law, that request embodied a correct rule, but under the circumstances of this case and the manner in which it went before the jury, the request was only an abstraction. Had it been charged without relation to the correct rule which was charged,
It is also claimed that it was error for the court to charge that a tenant in an office "building had the right in using the elevator to rely upon its being in á perfect condition. Precisely what.was meant by the Word “ perfect ” is not quite plain. It can scarcely be construed into a judicial declaration that the owner of the building was- a guarantor of safety. It might possibly be construed as applying to the question of contributory negligence, but that is not a subject with which, on the proofs, we should interfere with the finding of the jury; and the instruction on any other ground becomes immaterial, if we are right in. our conclusion that, as the proofs, were made, the defendant was called upon to rebut the presumption of negligence. '
There is but one other topic requiring special consideration, and ,that relates to the covenant in the lease .made between, the defendant and the United States Insurance Company. We do not construe that covenant as being binding upon the plaintiff’s intestate, so as to relieve the. defendant from liability for the negligent maintenance of the machinery used in operating and- controlling the elevator. We do not mean to decido that the covenant would be binding upon him in any event, but assuming that he might otherwise be brought within its-operation, we do not think its fair interpretation is such as to relieve the defendant from responsibility for neglect in proper care, attention, supervision and inspection of that machinery and those appurtenances of the elevator which gave way and caused the death" of the plaintiff’s intestate.
Under all the circumstances of the case, we cannot say that the verdict of the jury was, excessive.
The judgment and order appealed from should be affirmed, with costs. -
Van Brunt, P. J., Barrett, Rümsey and O’Brien, JJ., concurred.
Judgment and order affirmed, with costs.