Larkin v. Washington Mills Co.

The plaintiff, a man 32 years of age, was employed by the defendant in sorting and shipping goods from 74 and 76 Worth street, New York. The building is a five-story structure, the defendant occupying the ground floor, basement, sub-cellar, and fourth loft, the other lofts being used by tenants. The building was equipped with a steam elevator running from the sub-cellar to the last floor, but, being a freight elevator, no one was-regularly employed to operate it, each of the several tenants making such use of the elevator car as their business might require.. The elevator shaft was in the front portion of the building, opening upon the street, and, for the purpose of guarding against accidents at thiswpoint while the elevator was in use, a gate had been contrived which was raised by hand when the elevator car was-at the street level, but which automatically fell and closed the street front of the elevator shaft when the car was removed. The plaintiff was not regularly employed as a porter, but was under the direction of the shipping clerk, who, ct intervals, would send the plaintiff to the street to bring in packages of goods. On these-occasions the elevator was used, by the direction of the shipping clerk, and about three weeks prior to the accident—accepting, as we are bound to for the purposes of this appeal, the plaintiff’s version—the plaintiff, in using the elevator, discovered that the spring which had been contrived to let the gate fall when the elevator car was removed from the street level was out of order, and did not work as it was designed to do. After releasing the gate by hand, the plaintiff went to the shipping clerk, and informed him of the fact that the spring was out of order, and the shipping clerk replied that some carpenters were coming to make some repairs in a day or two, and that he would have them fix. the spring. A few

Where the daggers of an employment are known and obvious, the servant may be fairly said to have contracted with reference-to the risks which are incident to the work; but the master is at all times charged with the duty of exercising reasonable care to provide the employé with a safe place in which to work, and safe tools and appliances. The duty to furnish safe tools and appliances is not an absolute duty, but is satisfied by the exercise of reasonable care and prudence on the part óf the master in the manufacture, selection, and repair of such appliances. Probst v. Delamater, 100 N. Y. 266 , 272, 3 1ST. E. 184. “This is a duty,” continues the court, “which cannot be delegated to a servant so as to excuse the master from damages occurring through an omission to perform it; yet, when the master has exercised all of the care and caution which a prudent man would take for the safety and protection of his own person, the law does not hold him responsible-for a defect which could not be discovered by careful inspection, or the appliance of -appropriate tests to determine its existence.”' Had the master, in the case at bar, met this requirement of the law? Had he exercised that care and caution which a prudent man would take for his own safety and protection? Obviously, tins is not a question of law, but of fact. It was for the jury to say whether the master, in permitting this defective spring to remain three weeks after he should have known of its defective condition, had exercised that reasonable care which it was his duty to exercise in providing this plaintiff with safe appliances. The fact that the plaintiff knew the spring was out of order three weeks be-

There is a plain distinction between the case at bar and McCarthy v. Washburn, 42 App. Div. 252 , 58 N. Y. Supp. 1125 . Here the jury were authorized to find, if they believed the testimony of the plaintiff, that he supposed, and had reason to suppose, that the promise made by the defendant’s supervising shipping clerk that the gate would be repaired had been fulfilled before the plaintiff undertook the work which resulted in the accident. Mr. Muldoon. the shipping clerk, when the plaintiff complained to him about the condition of the gate and the failure of the spring to act, told the plaintiff that carpenters were coming to fix the hatch, and that when they came he would have the gate attended to. Between that time and the occasion of the accident, the plaintiff had not used the elevator .on the ground floor, where the gate was. In the interval he had seen lumber on the premises, and had been told that carpenters were working upstairs. Under these circumstances, the plaintiff might reasonably assume that the promise of the shipping clerk in reference to repairing the gate had been carried out, or, at least, a jury could so find. In McCarthy v. Washburn, however, there was no room for any such inference on the part of the plaintiff. He was digging in a sandbank under conditions which he had already recognized to be dangerous. He knew perfectly well, notwithstanding the assurances which he had received from his employer, that his employer had done nothing whatever to secure the bank or lessen the peril; and, furthermore, by himself continuing the process of undermining the bank in which he was at work, he constantly augmented the danger to which he was exposed. A glaring case of recklessness was thus presented, in which there was no room for doubt that the plaintiff had brought upon himself the injury of which he complained, while here the acts of the plaintiff may be capable of a view which would free his conduct from the reproach of imprudence.

It is urged by the defendant that the proximate cause of the accident was the moving of the elevator by some third person, without giving warning, and that the defendant cannot, therefore, be charged with negligence because of the defective spring. While it is probably true that, if the elevator had not been moved, the accident would not have occurred, it is equally true that if the gate had operated as it was intended to do, and as it did operate when the spring was in order, the plaintiff would not have fallen into the

The judgment appealed from should be reversed with costs. All concur, except GOODRICH, P. J., who dissents.

GOODRICH, P. J. I dissent from the prevailing opinion, on the ground that I find no evidence to justify, the theory that the defendant was bound to keep in repair the elevator and gate, or that Muldoon was the defendant’s alter ego.