Grifhahn v. Kreizer

The action is for negligence, brought against the lessee of a business building, who subleased to various tenants, and who furnished and maintained a freight elevator therein for their common use. The deceased, an expressman, being engaged upon the premises in the lawful business of a tenant, was there upon the im ■ plied invitation of the defendant, who owed to him the duty of exercising reasonable care in seeing that the premises, including this elevator, were safe. Griffen v. Manice, 166 N. Y. 188 , 59 N. E. 925 . This tenant occupied the sixth or top floor of the building, and the elevator was at rest opposite his rooms, 15 inches below the level of the floor; for the’construction of the elevator did not permit it to be brought to a level therewith. The deceased was compelled to step into the car of the elevator in order to place and to arrange the tenant’s boxes upon it. He had placed thereon six boxes, weighing in all about 400 pounds, which was much less than the weight power of the elevator. As he stepped into the car to place the seventh box thereon, the elevator fell to the ground, carrying him down to his death. The construction consisted of a horizontal shaft, carrying a large wheel, worked by a rope, and furnishing the motive power. The same shaft also carried a small pinion wheel, whose teeth meshed with those of a larger wheel, carried .on a second or drum shaft. The drum shaft carried two drums. The rope of one held the elevator car, and the rope of the other held the weight, which played up and down a slot, and served as a counterbalance. The car was controlled by a brake of a rope and a weight sufficient to arrest its progress. The only witness of the accident was Parcell, a servant of the tenant, who at the time was helping the deceased. He testified that as soon as he saw the elevator move he jumped to the check rope, which he found in perfect condition, and fastened. He then looked at the wheels, and found that the pinion wheel, which is on the drum shaft, had slipped from its bearing. The pinion wheel was held fast to its shaft by a key, which is a small iron pin, fitting

The next question is whether the jury could find the defendant culpable. The test is whether the defendant was reasonably careful and prudent in furnishing an elevator adequate and proper for the use to which it was to be applied. Montgomery v. Bloomingdale, 34 App. Div. 375 , 54 N. Y. Supp. 329 , and authorities cited. One of the plaintiff’s experts testified that the key was not properly mechanically put in, because it was lacking about three-eighths of an inch from coming through to the further end of the pinion; that the groove in which the key ran extended clear through the wheel, and a distance beyond, so that a key could be put through the pinion; and that if the key had been suitable and proper, and of the right length, and properly tightened, it would not have slipped out. Mr. Tripp, an expert, agreed with this view, and was thereupon asked this question:

“Q. In ordinary use, at the time of this accident and before that, were keys put in of this size and in this way, as this one was, or different ways? A. They are put in on the same principle, only they are generally put in the full length of the pinion. Q. That is, three-quarters of an inch longer? A. Yes, sir; the principle is the same.”

Mr. Tismer, one of the defendant’s experts, testified that a key one inch in length would be sufficient for the purpose for which it was used; but on cross-examination he testified:

“I mean to testify that a key one inch long, placed in that arm or axle to hold that wheel, going only one inch into the wheel, and lacking an inch and a half of going through, would be enough and be safe. I don’t say that is the way they put them in. That is sufficient. They put them in the whole length, as a rule. There is no length prescribed for it. Nobody cares to follow any rule. * * * Just as many one way as the other.”

The appellant insists that he has fulfilled the obligation cast upon him, first, within the rule that “where a machine, not obviously dangerous, has been in daily use for a long time, and has uniformly proved adequate, safe, and convenient, its use may be continued without the imputation of imprudence or carelessness”; taking the statement of the rule from the language of the opinion in Stringham v. Hilton, 111 N. Y. 188 , 197, 18 N. E. 870 , 1 L. R. A. 483 . The appellant cites certain authorities. In Lafflin v. Railroad Co., 106 N. Y. 136 , 138, 12 N. E. 599 , 60 Am. Rep. 433 , Earl, J., writes: “There is no complaint that the platform was out of repair or that it was-improperly constructed.” In Burke v. Witherbee, 98 N. Y. 562 , there was no claim that the car, track, or cable was defective, and none of them broke. Earl, J., writes that there was no conflicting evidence in the case, and the sole question was whether the hook that slipped should have been secured by a bolt fastened with a key. The car was drawn by a cable hooked into a bail. The cable necessarily must have been shifted from one car to another. It was shown that the mode proposed of securing the hook would not answer where two cars were used; that the hook had been used in the mine for years and in other mines. It was held that this was sufficient care on the part of the master, and, further, that the servant was as capable to judge of the safety of the shifting appliance as the master. Devlin v. Smith, 89 N. Y. 470 , 476, 42 Am. Rep. 311 , states the rule that the duty of the employer to his servant is reasonable care, and, where injury results from implements furnished,

It is further contended that the defendant discharged his whole duty when he caused the elevator to be overhauled, repaired, and tested by competent mechanics in the month preceding the accident. Several cases are cited. Dobbins v. Brown, 119 N. Y. 188 , 23 N. E. 537 , did not involve the question of inspection. Eo proof was given of any defect in the plan or structure, or that it was not well constructed, of good materials, in accordance with plans generally followed in manufacturing similar apparatus. In Hart v. Naumburg, 123 N. Y. 641 , 25 N. E. 385 , the defendants furnished an elevator and equipments “of the most approved kind and pattern,” and this, together with the careful testing and inspection of it by the defendants and by the inspector of the elevator company, was held sufficient. In Biddiscomb v. Cameron, 35 App. Div. 561 , 55 N. Y. Supp. 127 , the elevator was of a construction in common use, with the usual safety appliances, but the clutch failed to work. It was shown that shortly before the clutch had been examined, oiled, and tried by dropping the elevator. In Montgomery v. Bloomingdale, supra, the apparatus itself was sufficient and safe so far as its construction was concerned; and the court said that, on the point of defects of construction or the use of machinery unsafe in and of itself, the evidence did not permit a finding adverse to the defendant: But in the case at bar there was proof upon which the jury might find that there were defects in the construction of the elevator. There is no doubt that the defendant did cause the machine to be overhauled shortly before this accident, in consequence of an accident due to a broken cable, and that he gave instructions “to repair the cable, and to see that everything was O. K. and all right.” Mulholland, the workman in charge, testified:

“Before this last accident, I had examined minutely and particularly that pin as a special object of examination,—that and all the rest, inasmuch as it was in its place where it belonged. All of it was concealed, with the exception of about half an inch. I didn’t take it out and examine it; certainly not. I know about the condition of that pin inside,—the part that was not in view or exposed. * * * I sounded this key with a hammer,— the head of the key. That was the extent of the examination. <= * * The striking would indicate whether it was large enough to fit the place it was in. I mean to say that by striking the hammer on the head of it I could tell whether it was tight or loose. The object of striking the key on the head was to tell whether it would move or not.”

The construction of the key and its placement were open to outside' inspection. This is clear from the testimony of the defendant’s experts Mulholland and Tismer. “Reasonable inspection is necessary and required.” Carlson v. Bridge Co., 132 N. Y. 273 , 278, 30 N. E. 750 . “There must be careful inspection or the application of appropriate tests.” Probst v. Delamater, 100 N. Y. 266 , 273, 3 N. E. 184 . In Durkin v. Sharp, 88 N. Y. 225 , the court refused to charge that if the jury believed the track had been inspected within a reasonable time prior to the accident, by a competent inspector of the defendant, and had by him been adjudged to be in a safe condition, the plaintiff cannot recover; and it was held that the exception to the refusal was not well taken, and to excuse him the track must have been carefully inspected by a competent inspector. In view of the testimony that the key used was improper for the purpose, not in that it was defective, but in that it was inadequate, whether the inspection was such as should have been made was, I think, a question of fact for the jury.

It is contended that the proof of defective construction is not within the pleadings. The criticism on the pleadings would seem to be just, but I fail to find that the point was adequately and sufficiently raised at the trial, either by objection to the testimony or to the drift taken by the case, or on the motion to dismiss, although, inter alia, the grounds raised were that the plaintiff had failed to establish a cause of action set out in the complaint. In any event, I think that the point taken is not fatal to the judgment (Conhocton Stone R. Co. v. Buffalo, N. Y. & E. R. R. Co., 3 Hun, 523 ; Pollard v. Railroad Co., 7 Bosw. 437 ; Frear v. Sweet, 118 N. Y. 454 , 23 N. E. 910 ), and this court may treat the pleadings as if amended in conformity to the proof (Howell v. Railway Co., 92 Hun, 423 , 36 N. Y. Supp. 544 ).

Certain exceptions are said to be well taken, in that opinionative evidence was inadmissible. The first and second objections relate to matters elicited on the direct examination. The question was answered before the third objection. The fourth exception was to a ruling to strike out, directed, it is true, by the court, to be made when objection was first taken; but I think that, if we consider this with all the force of a timely objection, the admission of the evidence was not error. Shaw v. Stone, 1 Cush. 228 , 242. The fifth and sixth objections were both put upon another specific ground, not tenable, and the. final objection was upon a different ground than that now urged. Beir v. Cooke, 37 Hun, 38 ; Ward v. Kilpatrick, 85 N. Y. 413 , 417, 39 Am. Rep. 674 . I think that it was not an abuse of discretion

The judgment and order must be affirmed, with costs. All concur, except SEWELL, J., dissenting.