140 N.Y.S. 315 | N.Y. App. Div. | 1913
This action is brought under the Employers’ Liability Act. The servant, an adult who had been in employ for five months as a liftman, was required to clean the machinery of the lift on every Saturday. When cleaning the governor of the machinery above the shaft of the lift, he stood upon a girder that was below the governor, and kept his foothold by clinging with his left arm to an angle iron that was level with his chest. The cables of the lift ran semi-horizontally four or five inches above his shoulder. While thus engaged, and the cables were moving, his left arm was torn from his body.
There were no witnesses of the casualty and the version of the plaintiff is vague. He says, “ all of a sudden I felt a tug on the shoulder and my arm was off.” There is nothing more definite save, in repeating his story, he adds that after the tug he found the cable off the wheel, that he felt that (i. e., referring to the foreign force) must be the cable, that he “did not see where it [his arm] was being pulled or what was pulling it; ” again, “I did not see anything. I know the cable was on my arm and the arm was off.” And once again: “At the time that the cable was on my arm I don’t remember whether the cable was still on the sheave. I was unconscious after I felt the tug.” Thus while we may conclude that if the cables had not been working this casualty would not have happened, the manner of contact between the plaintiff and the cables or the immediate machinery that moved responsive to the cables does not appear. The plaintiff was bound to prove causal negligence. He was not confined to one specific act of negligence, but he was compelled to offer evidence that permitted
First, as to the contention that the master was negligent in ordering or permitting the cleaning of such machinery while the lift was working. I am not satisfied that the plaintiff established general custom. He called but a single witness, who specified five buildings and who said that he knew of “possibly fifty” others, and knew “generally around the city of New York ” where the machinery was shut down when such cleaning was done; but upon cross-examination he but specified two buildings, adding, however, there were several others which he could not specify. He admitted that he was not in the habit of going about “to see how they clean elevators,” that he personally had rarely seen any cleaning, that he had
Second, as to the contention that the master was negligent in working the lift “ with defective, old, worn and loose cables.” As I have said, the precise cause of the accident was not shown. Indeed, the learned counsel for the respondent says in his points: “ The only proof on the subject is given by
I think that there was not evidence, or at least sufficient evidence, to show that the mere fact that the cables had become old and worn indicated that such condition had any causal relation to the casualty. And there is no evidence that establishes or tends to establish the fact that, even if the cables were loose or even if the elevator started with a jerk, these defects caused the accident. The learned counsel writes in his brief, however, “these cables were proven to be old and loose, and that this particular elevator admittedly started with a jerk and a jar, and the other elevator did not; and these facts, together with the plaintiff’s story, creates the inference that the cable was jarred off of the wheels, and caught the plaintiff’s arm on the angle,” and again, “What probably happened was that this admittedly old and loose cable on this elevator, that started with a jerk, and of which the plaintiff had complained, flopped off the wheel on plaintiff’s arm, and the jury were authorized in so finding; and it is the province of the jury to draw the inference which can be fairly drawn from the facts.” This theory of accident is in accord with the bill of particulars. But there is no proof that the cable “flopped” off the wheel before the casualty, and no proof that justifies the inference thereof. That there was contact between the body of the plaintiff and the moving cables or the moving machinery, does not justify such an inference, for a very slight motion of the plaintiff’s body would have brought him into contact with the cables while in normal position. And such inference is counter to the testimony of the defendant’s witness, Mr. Coffin, a practical expert of great experience. The cables were of steel, five-eighths of an inch in diameter, and ran in grooves on the wheel nearest the point of the
For aught that appears in this case the plaintiff, with his arm resting within a few inches of the moving cables and the sheave, may have come in contact by the moving of his own body towards it rather than any aberration of the cables moving towards him. He stood upon this narrow iron girder and on •the edge thereof, and he testified that upon that girder was a “lot of grease; ” he was moving his body necessarily in the act of cleaning the governor, and the slightest slip on his part might well have brought his shoulder or arm into this contact.
Moreover, I have grave doubts whether the proof of the plaintiff’s own conduct was sufficient to absolve him. In Fitzgerald v. Newton Falls Paper Co. (204 N. Y. 184, 188) the court, per Gray, J., say: “But if the evidence might be deemed to admit of a doubt, and to raise a question of fact as to defendant’s having performed its whole duty towards the plaintiff in the respects discussed, there can be no reasonable doubt in my opinion that the latter wholly failed to show his freedom from contributory negligence. The evidence does not
The judgment and order must be reversed and a new trial be granted, costs to abide the event.
Burr, Thomas and Garr, JJ., concurred; Hirschberg, J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.