91 N.Y.S. 821 | N.Y. App. Div. | 1905
This is a statutory action to recover for the death of Littmann Starer by the fall of an elevator. The appellant was the lessee of two floors of tlie building known as No. 691 Broadway in the city •of New York and ■ conducted therein the business of making clothing. There were two elevators in the building, a passenger elevator in front and a freight elevator in the rear. The decedent was in the
It appeared that this elevator had been equipped with two appliances designed to prevent accidents such as happened. The one is known as a spring safety device which, if in proper working order, will stop the fall of the elevator in the event of the breaking of a cable or any considerable slacking thereof by imbedding teeth in the wooden guide posts on either side of the elevator. _ The other is known as a slack cable device, which is situate in the cellar at the bottom of the elevator just under the drum around which the cable winds. This device consists of a lever so located that if the cable became slack to such an extent as to endanger its getting off the drum, it would touch this lever, and its weight would lower the lever a little, which, through mechanical devices, would result in shutting off the power, and, if the cables were intact, this would stop the elevator wherever it happened to be.
Neither of these safety devices worked upon this occasion. After
The learned justice who presided at the trial tiled an elaborate-opinion on granting the motion for a new trial, assigning as his reason therefor that the doctrine of res ipso loquitur was applicable- and that he had not so instructed the jury. . The rule in such case is, however, that the order must be affirmed if it be sustainable upon any ground, even though the ground assigned by the trial judge be untenable. '
We are of opinion that this order should be affirmed. Aside from the question of the application of the maxim .res ipso loquitur there are .other exceptions taken by the plaintiff which required the granting of a new trial. After showing that some of the teeth in. the cam in the spring safety device were off altogether and that others had been worn, an expert called by the plaintiff was asked, the least amount of time it would take to produce this, condition, if the cam was subjected to the greatest amount of use and wear" and tear; and also whether that condition could have been produced by the fall of the elevator on this occasion.' These questions were, objected to, as immaterial, irrelevant and incompetent. The objections were sustained and the plaintiff excepted. We are of opinion that this was error. The testimony if admitted might have shown that the cam must have been in use for a long period and that the wearing away of the teeth 'from ordinary use would be very gradual which would indicate that it might -have. been discovered and repaired before they became , so-worn.as to be useless. Other evidence tending to show how these safety devices operate when in order and how tlíe cables may be affected by the manner in which the elevator is operated was likewise erroneously excluded. A witness who went down in the cellar from fifteen to twenty-five or thirty minutes after the accident and looked at the machinery and saw a piece of wood there, the location of which he said he was able
At the request of counsel for the defendant the court held that the appellant could not be held liable for his failure to adopt all the methods of inspection testified to by the experts, and counsel for the plaintiff duly excepted. The testimony of the experts did not relate to several independent systems of inspection, any one of which would be alone sufficient. They differed merely with reference to the sufficiency and thoroughness of the inspection. It could not be said as matter of law that the jury would not be justified in finding that the inspection to be sufficient under all the circumstances should'have been as complete as required by the testimony of any or all the experts. This was a question which should not have been disposed of as matter of law, but should have been left to the jury. (Young v. Mason Stable Co. (Ltd.), 96 App. Div. 305; Palmer v. D. & H. Canal Co., 120 N. Y. 170, 176; Stott v. Churchill, 15 Misc. Rep. 80; affd., 157 N. Y. 692,) The jury were properly instructed that the appellant was not liable for any negligence on the part of the elevator insurance company or its employees in inspecting the elevator; but they were not specifically instructed that it was the duty of the appellant to inspect it, and that he could not avoid liability on the theory that he had delegated that duty either to an inde
On the question as to whether the doctrine of res ipso loquitur is applicable to the case of án employee -using á freight elevator,, which falls.without any apparent cause, there is some conflict in the decisions. In such case it is to be borne in mind that in' no event-could the doctrine be applicable until it is affirmatively shown that the fall was not due to- negligence on the part of the operator, or the enginéer or fireman, who would ordinarily be coservants. Moreover, in an action by á servant, against his master, the law presumes that the master has performed Ms full duty. Merely showing that such an elevator, while bfeing operated with care, fell is not sufficient to -overcome' the presumption that tlie master has performed his duty and to cast upon him the burden of explaining the cause of the accident. The court, therefore, properly instructed- the jury that the mere happening of this accident would not justify the-inference of negligence and the exception thereto presents no.error. So far as the difficulty of making proof of the precise cause of an accident is concerned, it is no greater burden to a servant to discover ■ such" evidence in the case of an elevator than in many, other-instances where it is well settled that he must make such proof. The ordinary rule is that the servant must show that the machinery 01-appliance which caused the accident was defective or' out of repaii- and that this condition existed for such a length of time that if the-master had performed his duty of inspection it would have been discovered and remedied. I do not Understand the rule of law* to béthat if a locomotive engineer, for instance, is injured by the spreading of the rails or the breaking of a rail, or even the falling of a. bridge, this itself gives rise to the presumption that the .master has not properly performed his duty of properly constructing, inspecting and repairing. I think that- the .employee must go further and give other evidence tó establish negligence. (Warner v. Erie Ry. Co., 39 N. Y. 468.)
In the case of Stackpole v. Wray (99 App. Div. 262) and former-decision to same effect (74 id. 310), this court recently held that the-, doctrine is not applicable in an action by a.servant against his mas
We are of opinion, therefore, that a new trial should not have been granted upon the ground assigned in the opinion of the learned trial justice, but it was justified and required by other errors, and the order should be affirmed, with costs to respondent to abide the event.
■ Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; Hatch, J., concurred in result.
Order affirmed, with costs to respondent to abide event.