89 N.Y.S. 349 | N.Y. App. Div. | 1904
Lead Opinion
The plaintiff by this action seeks to recover damages for injuries alleged to have been • received on account of the negligent manner in which the defendant maintained an elevator; The' defendant is a corporation engaged in the livery stable business at 17 East Twenty-eighth street in the borough, of Manhattan, city of New York. It had been an occupant of these premises about-six months. Plaintiff had been in its employ fof six years as a general utility man and was so employed at the time of the accident. The eleva
The evidence given upon the trial, we think, was sufficient to authorize the jury to exonerate the plaintiff from any charge of contributory negligence. This branch of the case, therefore, needs no farther discussion.
The serious question arises upon the proof to establish the negligence of the defendant. The court held, and we think correctly, that the obligation resting upon the defendant was to use ordinary care and caution to provide an elevator reasonably safe for the purpose for which it was intended to be used, and that it was required to exercise the same degree of care in maintaining a condition of reasonable safety during the period of its use. In construction of this rule the court charged: “ The duty incumbent on an employer
In addition to this a fatal error was committed in' a ruling upon the trial. One Wood was called as a witness, who had been employed about this stable. He testified that on April 8, 1903, he visited the stable with Mr. Girarles E. Southard, the plaintiff’s expert, and examined the elevator and the fastening- of the steel cable. Over objection and exception he was permitted to testify that at that time it was fastened with two clamps, whereas at the time of the accident it had only been fastened with one. * There was no limitation placed upon the force and effect of this testimony. It was received generally in the case. Its manifest tendency was to convey to the minds, of the jury an impression- distinctly prejudicial, that the substitution of two clamps for the one existing at the time of the accident was a recognition upon the part of the defendant that the first construction was defective, and with this impression in
It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., and Patterson, J., concurred; O’Brien and McLaughlin, JJ., dissented.
Dissenting Opinion
I dissent from the conclusion of the majority of the court, that the evidence is insufficient to justify a finding by the jury of negligence on the part of the defendant.
There was no substantial dispute upon the trial as to the manner in which the accident occurred. The freight elevator, which was operated by hand power, and upon which the plaintiff had just placed a carriage which he was making firm upon the platform, •suddenly'fell and it was found that the single iron clamp, designed to fasten the end of the cable about ten inches above the eyebolt upon the elevator through which the cable passed, had come off so that the end of the cable slipped through the eyebolt, permitting the elevator to fall, and leaving the cable dangling in the shaft. It was admitted by the defendant’s witness that most of the strain came upon this single clamp which it was testified measured four inches by an inch and a quarter and which was held in place by bolts. This clamp the defendant’s expert testified should, if properly put on, sustain a weight of at least 4,000 pounds, or about twice the actual weight expected, and the carriage which fell with the elevator i,t was testified weighed about 1,700 pounds, being one of the heaviest that the defendant had. The defendant testified that he had ordered James Murtaugh, who was in the business of furnishing and repairing dumbwaiters and hand elevators, to make a
For the plaintiff it was testified by a mechanical engineer that-the usual and customary method of fastening elevators such as the one described was to pass the cable through the eyebolt twice and then to put on a clamp just above the eyebolt and a second clamp six or seven inches further up, and that if but one clamp is used with a loop through the eyebolt the strain comes directly on the-clamp; and that where two are used the strain is divided and the strength is twice as great, and that a single four-inch clamp as described was unsafe to- sustain a weight over 2,000 pounds, and might not sustain that weight.
, The question presented was whether or not a proper inspection was made, and in this connection whether the defendant used care in the selection of an inspector and whether the inspector in .fact adequately performed his -duties.
Assuming that in hiring a man in the dumbwaiter and hand- elevator business and in permitting the inspection to be actually made by a mechanic who was unfamiliar with testing the strength of materials, the defendant was not negligent, the defendant, as we understand the rule, cannot escape responsibility if that inspection was-inadequately made. As to employees, it has been repeatedly held
The simple character of the mechanical arrangement by which the elevator here was suspended, when supplemented by the information as to the weight• which sucha clamp if properly adjusted could maintain and the relative strength of single and double clamps and the testimony of the inspector as to the repairs he made, made it peculiarly a question for 'the jury to determine whether there was negligence in the construction and on the part of the inspector in inspecting and repairing the elevator. That his attention was called to the clamp appears from the fact that he found one bolt defective which he repaired; and the jury could properly conclude whether he should have supplied another clamp or made other repairs to secure safety.
With respect to the exception referred to as an additional ground for reversing the judgment, the record shows that the exception was to the ruling of the court admitting, over defendant’s objection, the question whether the elevator was in the same condition, and the answer to that question was,“ It was not,” This answer Avas in no way harmful to the defendant; and although it appears that the witness thereafter testified that the steel cable is now fastened with two clamps, no further objection was made or exception taken, so far as appears, to this testimony. The exception, therefore, was not of such a character as to require a reversal; and, furthermore, it may be said that as the evidence was very clear and ample as to what the condition was at the time of the accident, and was such as Would support a finding that the elevator' was defective and the inspection was negligently performed, it was competent for the jury to return a verdict holding the defendant liable for its failure to supply a safe place for the plaintiff to work.
I dissent, therefore, and think that the judgment should be affirmed, with costs..
Judgment and order reversed, new trial granted, costs to appellant to abide event.
Sic.