107 N.Y.S. 936 | N.Y. App. Div. | 1908
The plaintiff has recovered a judgment for the damages resulting from serious injuries caused by the falling of a hod elevator owned by defendant, From this judgment the defendant appeals. The plaintiff was a foreman in the employ of a firm of masonry contractors engaged in erecting two buildings in the city of Mew ■ York. These contractors rented from defendant a hod .hoisting elevator, which was used to carry bricks, mortar and other material to the several floors of the building. The elevator was sp constructed that it could be used to carry either hods or wheelbarrows. When the accident occurred it had brought two wheelbarrows to the fourth floor of one of the buildings. It was contended by defendant that plaintiff was riding on the elevator when it fell. The plaintiff denied this, and since the jury on conflicting evidence has necessarily found in plaintiff’s favor upon this issue, we accept his versión, which was that while the elevator was at rest he undertook to take one of the wheelbarrows off the elevator, standing for that purpose with one foot on the platform of the elevator, and the other on the floor of the building, when suddenly the elevator fell to the bottom of the building, carrying- him with it.
The immediate cause of the fall of the elevator was the breaking of the head-piece. What caused it to break does not appear. It was constructed of two planks about nine inches wide and two inches thick, held apart by separators and firmly bolted together. The wheel over which the cable ran was between these planks resting upon them. There was no evidence as to any agreement between the contractors and defendant as to whose duty it should be to inspect the elevator while under hire by the contractors. When a hod-hoisting elevator was hired it was the custom of defendant to install it in the building, leaving it to be used, operated and handled by the contractors to whom it was leased, and their employees. The defendant had nothing more to do with it, except that, as the building progressed, it would upon notice send its riggers to shift the ' head-piece up to another story and put in additional lengths of guides for the elevator to run upon. This particular elevator had been in the building for some weeks, and there was evidence that at times it had been used to carry excessive weights, above its designed capacity. There is no evidence that the headpiece which broke was improperly constructed, or that its material was defective, or that there were any apparent defects either in the head-piece or other parts of the machine. The principal question in the pase was as to the measure of the defendant’s obligation. Was it bound only to see that the elevator when installed was of proper material and properly installed, or was it charged with the duty of continuous care and inspection? The court in its charge did not attempt to instruct the jury specifically upon this point, saying only that it was the duty of the defendant to exercise reasonable care and precaution to see that the elevator and the apparatus connected therewith were reasonably safe for the uses for which they were furnished. Further than this the court did not define the limits of the defendant’s duty and responsibility. The defendant requested the court to charge that the plaintiff had no cause of action against the defendant unless the jury found from the evidence that
The judgment and order should be reversed and a new. trial granted, with costs to appellant to abide the event.
McLaughlin, Houghton and Lambert, JJ., concurred; Patterson, P- J-, concurred in result. •
Judgment and order reversed, new trial ordered, costs to appellant to abide event.