Majority
Headnote
The rule which, excuses a piaster from liability to a servant for injuries, caused by the negligence of a co-servant, presupposes that the master has performed the duties which the law imposes upon him, and that no negligence in this respect contributed to the injury. •At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the several grounds of contributory negligence on plaintiff’s part, the combination of such negligence and that of a co-servant in producing the injury, and the absence of any evidence of negligence on the part of the defendant. This motion was denied, the court thereby assuming that the evidence was then sufficient to carry the case to the jury. The defendant then gave evidence tending to controvert and impeach the testimony produced by
We are unable to see upon what ground these various decisions can be reconciled or supported. Upon the trial, and while the plaintiff was engaged in giving evidence of experts as to the proper construction of elevators with respect to their safety, the defendant’s counsel interrupted its progress by conceding that the elevator in question was not constructed as one intended to carry passengers or people should be. This concession necessarily forecloses any discussion as to the negligence of the defendant in omitting to perform the duty of furnishing safe and adequate machinery for the performance of the work in question, and narrowed the issues to be tried to those of contributory negligence. Whether the defendant’s employes were authorized or permitted to make use of the elevator in prosecuting their work, and whether the injury occurred in consequence of the use made of it by the plaintiff in riding to the upper floor. The evidence clearly required the submission of these questions to the jury. It showed that the injuries occurred in consequence of the fall of the elevator used in defendant’s warehouse at Garden City in the prosecution of work which the plaintiff was employed to perform. This elevator was used in hoisting grain from the lower to the upper floors of the warehouse, with the view of their having it there distributed either in a fanning-mill to be cleaned or into bins for storage. The usual method of carrying on this business was for the servant charged with its performance to load the grain into a van capable of holding some thirty or forty bushels, and when loaded to push it on to the elevator and cause the engi
Upon the occasion in question the plaintiff ascended with the elavator until it stopped about an inch below the level of the intended platform; he then stepped from the elevator upon the platform and attempted to push the van off on to the tramways. While thus engaged the engineer suddenly applied the power and caused the elevator to ascend until its top struck the pulley beam, and being thus prevented from going higher, the cable was broken and the elevator with its load fell a distance of some thirty or forty feet, to the bottom of its well, carrying the plaintiff with it and causing serious injuries to him.
‘ If the question as to the sufficiency of the evidence to carry the question of the defendant’s negligence to the jury was now open for consideration we should entertain no doubt of the plaintiff’s right to have it determined by them. The proof upon the trial showed that no appliance or safety guard, such as is usual and customary, even on freight elevators, to arrest their fall in case of a break in the cable, was provided by its constructors, and that its motion was regulated entirely by an engineer who could have no ocular observation of its position. It is apparent that the space between the pulley beam and the elevator when it arrived at the upper platform left but little leeway to guard against the possible inattention or error of the
Upon the trial the defendant did not even attempt to establish the safety .of the elevator’s construction but directed her evidence to those facts tending to show that the workmen were not authorized to ride on it while it was transporting grain, and her superintendent testified that he had previously notified the plaintiff and anpther servant of the danger to be apprehended by those riding on it, and forbade them from doing so. On .the other hand testimony was given showing that the superintendent had himself ridden on it in the view of the workmen; that he had directed the servants employed in moving grain to ride thereon while performing their work, and it was expressly testified by each of the employes called who had been engaged in working with the elevator that he had not been forbidden to ride on it or notified that it was dangerous to do so. It was in proof that visitors had occasionally been taken up in the elevator, and the defendant’s superintendent testified that he had told the employes that it was safe to come down in it, or ride to the second floor, but not to the platform above. Ho written or printed notice had ever been given by the defendant that the elevator was unsafe or not in
A serious question of fact thus appears to have been presented by the evidence as to the use intended to be made of the elevator by the defendant. It was quite competent for the jury to find, upon the evidence, that the servants of the defendant were induced and encouraged to ride on it by the expectation and consent of the defendant in the prosecution of the work for which they were employed.
It was conceded by the General Term that the elevator was defective and unsafe for passengers, and that it was the duty of the master to use reasonable care and caution in the selection of implements, tools and machinery for the use of her servants in their employment; but the judgment was affirmed upon the ground that the accident occurred through the carelessness of a co-servant which was there held to be one of the risks of service assumed by the plaintiff in entering the employment.
We do not concur in this opinion. It has recently been several times held in this court that co-operation of the negligence of the master and a co-servant in the production of an injury to an employe, does not excuse the master from liability therefor. (Fuller v. Jewett, 80 N. Y. 46 ; Cone v. D. L. & W. R. R. Co., 81 id. 209; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546.) That a fellow servant may, by care and caution, operate a defective and dangerous machine so as not to produce an injury to others, does not exempt the master from his liability for an omission to perform the duty which the law imposes upon him of exercising reasonable care and prudence in furnishing safe and suitable appliances for the use of his servants. The rule which excuses the master under such circumstances presupposes that he has performed the obligations which the law imposes upon him, and that the inj ury. occurs solely through the negligence of the co-employe. (Pantzar v. Tilly Foster Mining Co., 99 N. Y. 368 .)
The testimony of the plaintiff shows that he had no knowledge of the defects in the machinery in question, and could not,
In every view we have been able to take of the case questions of fact are presented requiring its submission to the jury.
The judgments of the courts below should be reversed, and a new trial ordered, with costs to abide the event.
All concur.
Judgments reversed.
Cases cited
- Bowman v. Agricultural Insurance 59 N. Y. 521 p. 516
- Ryan v. Fowler 24 N. Y. 410 p. 517, p. 518
- Ellis v. New York, Lake Erie & Western Railroad 95 N. Y. 546 p. 517
- Flike v. Boston & Albany Railroad 53 N. Y. 549 p. 517
- Barton v. City of Syracuse 37 Barb. 292 p. 517
- Mackay v. New York Central Railroad 35 N. Y. 75 p. 517
- Fuller v. Jewett 80 N. Y. 46 p. 518, p. 526
- Warner v. Erie Railway Co. 39 N. Y. 468 p. 518
- Durkin v. Sharp 88 N. Y. 225 p. 518
- Slater v. Jewett 85 N. Y. 61 p. 518
- Connolly v. Poillon 41 Barb. 366 p. 518
- Devlin v. Smith 89 N. Y. 470 p. 518
- Matteson v. New York Central Railroad 62 Barb. 364 p. 519
- Wright v. New York Central Railroad 25 N. Y. 562 p. 519
- Homer v. Everett 91 N. Y. 641 p. 519
- Newson v. New York Central Railroad 29 N. Y. 383 p. 519
- Baxter v. Roberts 44 Cal. 187 p. 519
- Spelman v. Fisher Iron Co. 56 Barb. 151 p. 519
- Dana v. New York Central & Hudson River Railroad 92 N. Y. 639 p. 519
- Mehan v. Syracuse, Binghamton & New York Railroad 73 N. Y. 585 p. 519
- Coughtry v. The Globe Woolen Company 56 N. Y. 124 p. 520
- Vosburgh v. Lake Shore & Michigan Southern Railway Co. 94 N. Y. 374 p. 520
- Ernst v. Hudson River Railroad 35 N. Y. 9 p. 520
- Mann v. President of the Delaware & Hudson Canal Co. 91 N. Y. 495 p. 520
- Cone v. Delaware, Lackawanna & Western Railroad 81 N. Y. 206 p. 520
- J. Russell Manufacturing Co. v. New Haven Steamboat Co. 50 N. Y. 121 p. 521
- Schwier v. New York Central & Hudson River Railroad 90 N. Y. 558 p. 521
- Ring v. City of Cohoes 77 N. Y. 83 p. 521
- Stackus v. New York Central & Hudson River Railroad 79 N. Y. 464 p. 521
- Burke v. Witherbee 98 N. Y. 562 p. 521, p. 522
- Owen v. New York Central Railroad 1 Lans. 108 p. 522
- Gibson v. Erie Railway Co. 63 N. Y. 449 p. 522
- Pantzar v. Tilly Foster Iron Mining Co. 99 N. Y. 368 p. 526