Sullivan v. Greenhut-Siegel Cooper Co.

them from coming in contact with the wall of the building as the elevator ascended, and likewise to place a block behind one of the rear wheels of the wagon to keep it from moving backwards. The witness Hanlon, who testified in favor of the plaintiff, was an elevator man in the stable. At lunch hour he had been relieved from duty, and one Gaswich took his place. The accident took place just after Hanlon returned to the stable, and he is the only eyewitness to its occurrence who was produced on the part of the plaintiff. He testified that, when he left for lunch and turned the elevator over to Gaswich, the ordinary block was on the platform of the elevator, and he further testified that the usual strap for tying up the shafts of the wagon was present on the wagon. He saw Gaswich put up the shafts, but he did not see whether Gaswich secured them with the strap, nor did he see whether the block had been placed behind one of the rear wheels. Gaswich was called by the defendant, testified that he had secured the shafts with the strap in question, and had placed the block behind one of the rear.wheels of the wagon, and he attempted to attribute the happening of the accident to the fact that the decedent was standing at the rear of the wagon with his back against it, and must have pushed it forward, thus causing the shafts to strike the side of the wall of the building.

[1] There seems to be no question that it was the duty of the elevator man to take the necessary precautions in relation to the wagon before moving the elevator upwards, and that the usual appliances of the strap and block were present and available. If Gaswich failed to use these appliances, _ then his negligence was that of a fellow servant in a detail of the work, and plaintiff cannot recover unless under the provisions of the statute in question.

[2] The plaintiff claims that the elevator was a “way,” and that it was defective, in that at the time of its ascension, when the accident occurred, it was actually unsafe by reason of the condition of the wagon which had been placed thereon. The learned trial court submitted the case to the jury on this theory, leaving only for the determination of that body the question whether Gaswich had actually strapped up the shafts properly, and also placed the block behind the rear wheels in accordance with the usual custom. He expressly charged the jury that, if they should find that the shafts had been properly strapped up and the block placed behind the rear wheel of the wagon, then they should find a verdict for the defendant. The chief question, therefore, involved on this appeal is whether the condition of the elevator, together with the wagon, at the time of the occurrence of the accident, was such as to constitute a defect in the “way” within the meaning of the statute. The learned trial court was of opinion that the case before him' was analogous to that of Heske v. Samuelson, L. R., 12 Queen’s Bench Division, 30. There is, however, a very substantial difference in the facts presented in the case just cited and those shown in the evidence in the case at bar. In that case there was a lift or elevator, consisting of two separate platforms, which were used for the carriage of coke to the top of a furnace some 85 feet above the ground. The platforms of the lift ascended or descended

alternately. One platform was ascending, filled with barrows of coke, and the other platform was at the ground level being filled with barrows of coke. One of the employés, while working on the platform which was at the ground level, was struck by coke which fell from the platform' which was ascending. It was held that the elevator was so constructed as to be unsuitable for the use to which it was put, in that there was a failure to so protect the sides of the ascending platform that no coke should fall from it down upon men working below, or to so roof the platforms that, if coke should fall, it could not strike those who were working below at the ground,level. The principle of decision, however, was that a “defect” in the “way,” within the meaning of the statute, could exist in the “way,” though mechanically perfect, if it was not suitable to the use to which it was"put, when considered in the light of the reasonable safety of those obliged to use it or at work near by it. Lipstein v. Provident Loan Society (Sup.) 139 N. Y. Supp. 799 . In considering the elevator here in question, the mechanism itself is not to be considered alone. It was intended to carry loads, and at the time of the accident was carrying a load. If it was loaded in such a manner as to create a danger in its ■operation, then it became for the time being a defective “way.”

[3] The duty of preventing or remedying a defect in thé way was primarily an obligation of the master which could not be so delegated as to relieve the master from responsibility. Hence if, on the occasion in question, the wagon was placed negligently on the platform of the elevator, tlie negligence, though in fact that of one in the common ■employment, was in law the negligence of the master itself.

[4] There was ample evidence from which a"negligent placing of the load upon the elevator might be inferred by the jury. Nor should such a finding by the jury be deemed against the weight of evidence, though Gaswich, the elevator operator, testified to a state of facts tending to show a proper performance of his duty. As the case stood, the negligence claimed by the plaintiff was in act that of Gaswich and in law that of the defendant also. Hence Gaswich was as a witness vitally interested, for his personal conduct was involved in the controversy. Of course, the jury could not find an affirmative by simply rejecting the testimony of Gaswich, but such is not the case at bar.

Order denying motion for a new trial affirmed, with costs. All concur.