110 N.E. 760 | NY | 1915
On the afternoon of April 27, 1909, a passenger elevator in regular use at the well-known department store of the defendant in the city of New York suddenly fell. The plaintiff, among others, was in the elevator at the time of its fall, and sustained personal injuries for which this action is brought. The immediate cause of the fall was the breaking of two steel straps or supports, by which the elevator car was attached to certain I beams, a part of the elevator construction. A description of the straps and their relation to and connection with the elevator car and machinery is given by Justice BURR in the opinion written by him at the Appellate Division when the judgment entered on the verdict in favor of the plaintiff was reversed by that court. (Rumetsch v. Wanamaker, New York, Inc.,
The questions to be considered on this appeal are few, because of the stipulations and rulings made at the trial All questions of the defendant's negligence other than those relating to the sufficiency of the supporting straps as installed, and the propriety of using and continuing to use the elevator with such straps thereon, were withdrawn from the jury by the consent of the plaintiff. The court, without objection by the plaintiff, charged the jury that *382 "It has been admitted that this elevator was purchased of competent manufacturers; that the Otis Company was a competent and reputable manufacturer of elevators. So in that respect in regard to the purchase and primary installation of this elevator no charge of negligence can be sustained." The court left to the jury in substance the question whether, notwithstanding the defendant had purchased the elevator from and had the same installed by a competent manufacturer, the defects therein by reason of such straps were so open and so obvious that a prudent person should have known or have ascertained by inspection that the same was incapable or would become incapable of supporting the burdens which were imposed upon it.
The defendant insisted at the trial that there was no evidence to justify the court in submitting any question as to the defendant's negligence to the jury, and the Appellate Division has sustained such claim.
The duty of the defendant to inspect the elevator from time to time could not be delegated. As a corporation it had no personal identity. It could only act through others. In employing others to make the inspection it was its duty to employ persons of reasonable skill and experience to perform the duty so imposed upon it. For the failure of such person to make such reasonable inspection and to ascertain a defect that was open and visible to a person of such skill and experience the defendant is liable.
The jury could have found that the supporting straps placed vertically but so shaped as to have two right angles with a space between the angles of about three inches and also so placed that the horizontal part between said right angles had no support was not only unusual but substantially without precedent. They could also have found that the supporting straps so fastened would when used necessarily have some vibration arising from the starting and stopping of the elevator and the running of *383 the same. The strain at the inner angle where each of the straps broke was shown without contradiction to be several times the strain of a strap without such angles.
It would not seem to require more than ordinary knowledge and experience to appreciate that such construction would materially increase the strain upon the straps and at least require a corresponding increase in the size and strength of the straps over such as are ordinarily used when installed without right angles therein.
There was suspended from the straps the elevator, which weighed about 3,000 pounds, in addition to its load of passengers. It was, as we have said, designed to carry a load of 2,500 pounds. At the time of the accident there were eight or nine persons in the elevator car.
One of the defendant's experts testified that a safe load for each strap as installed would not exceed 1,440 pounds and another that it was possibly only 1,000 pounds. The expert first mentioned explains: "I mean by the safe load that that is the load that could be repeated any number of times without injuring the strap or hurting the material." He further testified: "The conclusion I arrive at then is that in order to do the work that this strap was required to do it ought to have been a larger strap or else of a different shape and that it never had the original strength which it ought to have had for that place * * *. It was apparently weakened by that hardening that I say existed at the angle. * * * The effect of a greater load if very much greater than 1,440 pounds per strap used constantly for a long period of time is to wear out the strap and eventually break it, wear it out at the weakest point in the corner * * *.
"Q. This strap broke then because it had suspended from it a load greater than its working load for a long period of time, greater than it ought to have done, you said?
"A. For more repetitions than it ought. By repetitions I mean starting the elevator through a series of weeks *384 and months and over a year * * *. Vibration in some way weakens the iron and causes it eventually to break * * * Bending a piece of iron at right angles such as that was bent, is very apt to produce a hardening in the bend in the way that was; a sharp bend like that especially if it is bent cold. It is something thatevery constructor ought to expect to find * * *. If there is space between the underlying flange and the undersurface of the strap that will be a weaker construction than if you found it resting on the flange. That would be an additional reason why no more than 1,440 pounds per strap should be placed on it." The same expert testified that in condemning the straps he did so upon his examination which consisted "only in what I can see with my eye and what I can compute with my knowledge."
Another expert called by the defendant testified: "That the sharp bend * * * is not to be recommended as under such treatment the material is necessarily overstrained under even small loads."
The straps were in plain sight on the elevator and were seen by the defendant's engineers and inspectors. The question of the defendant's negligence as submitted to the jury has some evidence to sustain it. The measure of the defendant's duty was reasonable prudence and care. (Griffen v. Manice,
The rule necessarily adopted by this court in Stott v.Churchill (
In Devlin v. Smith (
The duty of the defendant was to employ persons of reasonable skill and experience to inspect its elevator, and it was responsible for the negligence of such inspectors in performing their work.
We think in view of the unusual character of the supporting straps and the manifest multiplication of strain upon the inner angles thereof that it was a question of fact whether the inspectors employed by the defendant were negligent in the performance of their duty, which question of fact was properly left to the jury.
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
HISCOCK, CUDDEBACK, HOGAN, CARDOZO and SEABURY, JJ., concur; WILLARD BARTLETT, Ch. J., absent.
Judgment accordingly.