Andersen v. Thompson-Starrett Co. — 153 A.D. 740

Majority

p. 740

Louis Andersen, Appellant, v. Thompson-Starrett Company, Respondent.

First Department,

December 13, 1912.

Headnote

Master and servant—negligence — injury to carpenter in elevator shaft — contributory negligence — failure to notify operator of elevator.

While plaintiff, a carpenter in the employ of a sub-contractor, was engaged in setting the jamb of an elevator door on an upper floor of a building of which the defendant was the main contractor, with his right hand within the elevator shaft, the elevator descended and caught his hand between the floor of the elevator and the door sill. It appeared from the evidence that plaintiff knew that the work was dangerous, but no notice was given to the operator of the elevator, who was an employee of the • defendant, that workmen would be required to project any part of their bodiés into the shaft. There was nothing to suggest to the operator of the elevator that the plaintiff would do any part of his work in the shaft.

Held, that an order setting aside a judgment in favor of the plaintiff and directing a new trial should be affirmed.

Employees about to work in an elevator shaft, who fail to notify some one in authority of their intention so to do and to arrange for their protection are guilty of contributory negligence.

McLaughlin, J., dissented.

Appeal by the plaintiff, Louis Andersen, from an order of the Supreme Court, made at the New York Trial Term and

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entered in the office of the clerk of the county of New York on the 8th day of April, 1912, setting aside the verdict of. a jury in favor of the plaintiff for $1,000 and granting the defendant’s motion for a new trial.

William M. Kilcullen, for the appellant.

James J. Mahoney, for the respondent.

Plaintiff on July 25, 1910, was employed by J. F. Blanchard & Co. as a carpenter on a building in course of erection at 535 Park avenue, New York .city, for which his employers were sub-contractors, the defendant being the main contractor. At about nine-forty A. M. of that day he was engaged in setting the jamb of an elevator door on the thirteenth floor of the building, in a kneeling position, with his right hand inside the elevator shaft, hammering nails to attach the jamb to the framework of the door, the nails being held in his left hand. While so engaged the elevator descended and caught his right hand (still inside, the shaft) between the floor of the elevator and the door sill, a space of about an inch and a half, causing the injuries for which he seeks compensation in this action. Plaintiff testified that he had set half a dozen doors like the one in question on different floors of the building, with the elevators running all the time. He admitted that the place he was working at was a dangerous one; that he knew he had to be very careful there; that the elevator went up and'down several times while he was at work on the morning in question; and that he knew the car was above when he put his hand inside the shaft. The cable was visible when the car was below the floor where he was at work, but was not in sight when the car was above it. The record is devoid of any proof that any of the elevator operatives employed by the defendant knew, or had reasonable ground to believe, that workmen would be required in the course of their duties to project any part of their bodies into the elevator shaft. There is no proof that the operator in charge of the particular elevator which caused the accident saw plaintiff or any other workman at work in or near the shaft. Plaintiff testified that when the elevator

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descended for the last time before the injuries were caused, he turned around to take some tools and by the time he had picked them up the elevator had ascended. There was nothing, therefore, from any position in which the plaintiff was seen by the operator which would have suggested to the latter that the former would do any part of his work within the shaft. The case comes clearly within the rule laid down in Lynch v. Elektron Mfg. Co. (19- 6 N. Y. 171 ), that workmen about to perform duties within an elevator shaft should notify some one in authority of their intention so to do, and should make an arrangement for their protection while so engaged, failure to do which is negligence upon the part of the workman. No such notice. was given in the case at bar, nor was any such arrangement made.

It follows that the order appealed from, setting aside the judgment in favor of plaintiff for $1,000, and directing a new trial of the action, was proper and should be affirmed, with costs to respondent.

Ingraham, P. J., Clarke and Scott, JJ., concurred; McLaughlin, J., dissented.

Order affirmed, with costs.