Kern v. De Castro & Donner Sugar Refining Co.

but such, only as are reasonably safe; that the test is not whether he has omitted to do something which he could have done, nor whether better machinery might have been obtained, but whether his selection was reasonably prudent and careful, and whether the machinery provided was in fact adequate and proper for the use to which it was to be applied. Stringham v. Hilton, 111 N. Y., 195 ; 19 N. Y. State Rep., 621. Tested by these rules, the evidence made it very clear that the machinery was adequate to its proper use and reasonably safe.

The plaintiff’s injury was occasioned by the fall of an elevator, and the principal defect alleged is the want of some safety appliance, like a ratchet and dogs, to prevent such fall if the cable should break. But the elevator was not constructed or used for carrying passengers. ¡Nobody 'ever rode upon it even for some temporary purpose. It is so protected at all points that a person could not enter it without deliberately climbing over barriers placed in his way. ¡No consent to any such use and in fact no such use by any one was indicated in the proof. The purpose for which it was constructed aud operated was to lift bone-black or what is called “ char ” from the cellar to the third floor. The bucket or wagon was suspended from wheels which moved upon a rail fixed beneath the roof of the elevator and matched a similar rail in the cellar and on the third floor. When the elevator was down the bucket was pushed along the cellar rail upon that in the elevator where the wheels rested in small notches made for that purpose and when the elevator reached the third floor it was stopped at a point where its own rail matched that outside and the bucket was drawn on its wheels to its destination. It is evident that such an elevator, relatively to the servants using it, could not be deemed dangerous, defective or unsafe for lack of safety appliances to break or prevent its possible fall. The bone-black might be spilled or the bucket broken, but the servants using the elevator had no right to be in it or under it and the possible breaking of the cable suggested no possibility of danger to them. Two experts in the construction of similar machinery were sworn on behalf of the plaintiff. Each testified, that the screw gear which operated the elevator was the best for the purpose and pointed out no defect in the machinery except the lack of a ratchet and dogs or some similar appliance. And one of them admitted that he placed such appliance upon his elevators because, although made-to carry freight, they were used quite commonly to carry passengers who would ride upon them. But this elevator, in view of its purpose and use, could not reasonably be supposed to put human life in danger by its fall and it was not negligence to omit a precaution applicable only to a situation which did not in fact exist.

What happened was in one respect so extraordinary that nobody could have foreseen it and no prudence could have anticipated the need of guarding against it. The bucket slipped from its place on the rail and wedged the platform against the walls of the elevator well in such manner as to stop it and hold it fast.

Something of this sort had occurred before, but so seldom, in

comparison with the usual action of the machine, as to indicate, instead'of a defect in it, more or less of carelessness or haste in its operation. The stoppage of the platform put nobody in peril, and the difficulty could have been removed with perfect safety to machiné and operators. When the platform stopped, prudence on the part of the engineer required that he should first, by reversing the movement of the cable drum, take up the slack which had accumulated upon the stoppage of the platform. To release the latter without so doing was to make the platform fall the length of the slack, and put a severe and sudden strain upon the cables. This the engineer did, and from that strain one of the cables and the wheel over which it passed were broken. Even then no one could have reasonably anticipated that fragments would have fallen elsewhere than in the well, or periled the safety of persons outside of it. But that was what happened. One piece of the broken wheel fell into the cellar, but another striking, or deflected by some obstacle, shot out of the well at the third floor, and struck plaintiff on the back of the head. Obviously, the proximate cause of the injury was the negligent act of $le engineer, nothing in or about the machine was an efficient cause of the accident, or implied negligence on the part of the master. And even so far .as the engineer is concerned, liis act, although imprudent, was not one which any one could have foreseen involved danger to the ■servants.

I have no doubt that the omission of safety appliances upon a freight elevator which never carries passengers, and from which and from the well the servants are excluded, does not serve to establish negligence on the part of the master; but the respondent refers to some other facts as pertinent to that inquiry.

He says the elevator had several times fallen. What is meant by that is that occasionally the brake which controlled the drum ■slipped, and the platform struck heavily upon the cellar floor, or the rope on the drum overwound another coil and slipped, producing a jar or jerk. These things had nothing whatever to do with the accident which happened, and had never occasioned any serious injury to the elevator itself, and certainly never threatened ■or in any manner endangered the safety of the operators.

But it is said the notches in'the elevator rail made for the bucket wheels to rest in had worn smooth so that the wheels •sometimes slipped out and thereby the platform became wedged. There is some evidence to that effect, though it is quite as probable that, in the few instances specified in the proof, the wheels were not- in. the notches though the operator supposed that they were. But assuming the utmost which it is possible' to claim, it is still true that the elevator was adequate to the purpose for which it was used, and was not only reasonably safe for the .servants who operated it, but so entirely so that no prudence could have anticipated any danger to the workmen. It appears that no notice was ever given to the master of the wearing of the notches, and that, as matter of fact, they almost invariably, and in the vast majority of instances, answered their purpose. There was nothing in the facts to indicate to the master, if it knew them, that the

safety of the servants was endangered or the elevator inadequate to its ordinary duty. We are, therefore, of opinion that the plaintiff ought not to have recovered.

The judgment should be reversed and a new trial granted, costs to abide the event

All concur.