76 N.Y.S. 344 | N.Y. App. Div. | 1902
This action was brought to- recover damages for the death of plaintiff’s intestate, alleged to have been caused by the defendant’s negligence. The case was tried before a jury at a trial term of the supreme court held in Oneida county in March, 1901, and resulted in a verdict in plaintiff’s favor for $5,000. It appears that on the 9th day of December, 1899, the defendant was engaged
We are of the opinion that the accident occurred in the manner indicated by the defendant, but, assuming that the plaintiff’s theory is the correct one, we do not see how a recovery can be had upon-the evidence presented at the trial. The purpose for which this elevator was constructed and operated was to lift brick and mortar to-the different floors for the men who were engaged in laying the walls of the building. The elevators were not constructed or used for the-purpose of carrying passengers. They were the ordinary builders’ elevators, consisting of platforms without any sides, very generally in use by those engaged in erecting brick buildings, and were constructed under the direction and supervision of a competent and experienced mechanic. One gang of men at the base rolled wheelbarrows loaded with brick and mortar onto the platform of the car,, and it was pulled up, and another gang of men at the top of the building took the loaded wheelbarrows from the car. When the elevators were first operated, the cars were only run to the top of the first story. The morning before the accident the elevators were-raised so that the cars would run to the third floor. After the work of raising them was finished, Mr. Redding, the car inspector and repairer, inspected the cars and bolts, and discovered no defects. One of the employés went under the car, and held the eye of the bolt with..
“The degree of care required of an employer in protecting his employes from injury has been stated to be the adoption of all reasonable means and precautions to provide for the safety of his servants while in the performance of their work. The omission to use such care has been held to be negligence rendering the employer liable for damages occasioned by it; but such neglect must be proved, either by direct evidence or the proof of facts from which the inference of negligence can be legitimately drawn by the jury. It cannot be supported by mere conjecture or surmise, but must be made referable by the proof to some specific cause or defect It has been held that the mere fact that an accident occurred, which caused an injury, is not generally of itself sufficient to authorize an inference of negligence against a defendant.”
We think there was no evidence upon which the jury could properly find that the defendant was guilty of any negligence in furnishing the elevator or its equipment, or in providing for its proper inspection from time to time as was necessary, in order to guard against accidents. Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483; Hart v. Naumburg, 123 N. Y. 641, 25 N. E. 385. The motion for a nonsuit therefore should have been granted.
The judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
MCLENNAN, J., concurs. SPRING, WILLIAMS, and HIS-COCK, JJ., concur in result.