82 N.Y.S. 423 | N.Y. App. Div. | 1903
The plaintiff was in the employ of one Bader, who was employed, by defendant to repair the plumbing in a building in his possession. As a part of this work it was necessary to put a pipe through an elevator shaft at one of the upper floors of the building. On November 17, 1899, while this work was being done, the elevator Was operated below the story at which the plaintiff was at work, ■and as the elevator ascended the counter weights descended, crushing the plaintiff’s leg.
To do this work it was necessary to construct a platform inside the elevator shaft. For this purpose planks were used to cover the shaft, upon which the plaintiff was instructed by Bader to work. The plaintiff and his fellow-laborer went to work, tore out the old pipe preparatory to putting in the new pipe. The plaintiff testified that while he was at work the defendant came and told him to stop working, as it was necessary to use the elevator. The men stopped, the boai'ds were taken off, and the plaintiff went upon a fire escape to make a fire to melt the solder to be used in replacing the pipe. In about half an hour the defendant came to the plaintiff and said : “Now, yon can recommence again to work'—-the elevator will not come any more.” The men then replaced the plank across this elevator shaft and resumed their work. While thus engaged the plaintiff heard an outcry and turned around to see what was the matter, when the counter weight in the elevator shaft descended and caught his right foot, crushing it so that it had to be amputated. The man in charge of the elevator testified that he was present when the plaintiff came to work; that he refused to allow him in the elevator shaft as the elevator was running; that at about half-past ten the
On behalf of the defendant, the plaintiff’s employer, Bader, testified that he was doing the work for the defendant; that there was a leader running across the back of the elevator shaft at the ninth floor, and that he was repairing this leader; that the plaintiff took the old leader out; that the defendant was there, and it was at his suggestion that these planks were placed across the elevator shaft for the men to work on; that while the men were at work the elevator was operating on the lower floors; that he told the plaintiff that this was a dangerous job, but did not call his s¡>ecial attention to the counter weights; that while the elevator was in operation the weights moved up and down, and that he then warned the plaintiff to look out for them; that the defendant was not upon the floor when the accident happened; that the defendant did not warn either the witness or the plaintiff about these counter weights, and
The court, in charging the jury, predicated the plaintiff’s right to recover upon the jury’s believing “ that the defendant informed him (plaintiff) as he was about resuming work in the elevator shaft upon the ninth floor, that the elevator would not be run while he was so at work ; and that, notwithstanding such information, the elevator was run, and that in consequence thereof the plaintiff lost his leg. * ' * * If yon believe that the defendant informed the plaintiff that the elevator would not be run while he was working in the shaft, then the plaintiff had a right to rely thereon; and, if the defendant did run the elevator so as to cause the injury complained of, the defendant was guilty of negligence. If, on the other hand, you do not believe that the defendant informed thejilaintiff that the elevator would not be so run, then the only duty owed to the plaintiff under such circumstances was that of ordinary care while the plaintiff was so doing work in the elevator shaft. In that event, you will consider and determine from the evidence whether or not the defendant did exercise such care. If you believe that the defendant did exercise such care, you will find in his favor. On the other hand, if yon find that he did not, you will decide whether or not the plaintiff was guilty of contributory negligence.” The defendant specifically excepted to the charge “ that if the jury believes that the defendant informed, the plaintiff that the elevator would not be run, then the plaintiff had a right to rely upon such information ; and if the defendant did run the elevator he was guilty of negligence; ” and it is this exception that presents the serious question in the case. The
It follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
O’Bbien, McLaughlin and Laughlin, JJ., concurred; Patterson, J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.