Beyer v. Vietor — 51 N.Y. St. Rep. 83

Majority

p. 83

John Beyer, App’lt., v. George E. Vietor et al., Resp’ts.

(New York Superior Court, General Term,

Filed March 6, 1893.)

Headnote

Master and servant — Assumption of risk.

Plaintiff had been employed as porter by defendants for seven years and knew the construction and manner of operation of their elevator. He was taking a heavy case upon a truck to the upper story, and when he had moved it half way out a chain was shaken as an inquiry whether the elevator was in use, to which he did not reply,and the platform descended and the case was thrown against and injured him. He then called out and the platform ascended. Held, that plaintiff, by continuing in the service with knowledge of the way of working the elevator, assumed the risks which he saw and understood, and that if there was any negligence in lowering the platform at that time it was that of a fellow servant, which would forbid a recovery.

Appeal by plaintiffs from judgment entered upon an order dismissing complaint at trial term.

August P. Wagener, for app’lt; Blumenstiel & Hirsch, for resp’ts.

The action was for damages to plaintiff from defendants’ alleged negligence in not furnishing a safe elevator. The facts were as follows: The plaintiff had been for seven years a porter, employed by the defendants in their store. Through that time he knew, as did the other porters, of whom a witness Lieb was one, the construction of the elevator and the way in which it was intended to be worked and in which it was worked. At the time of the accident, the elevator was used as it had been used always. On the day in question the plaintiff in the course of his work rolled upon the platform of the elevator a heavy case of goods, which was on a four-wheeled truck and remained there. The plaintiff set the elevator in motion by pulling a rope and it went to the fourth floor. He moved the truck so that it went about half upon the floor. Before he had gone

p. 84

farther, a chain that went down through the platform below was shaken. He knew that was meant to obtain an answer whether the elevator was in use. The chain was shaken by Lieb, upon the floor below. On the trial the plaintiff was uncertain whether he, upon seeing the rope shake, spoke to the man, as the custom was. Perhaps he believed that, as the truck was half off, he could get it all off at once, so as to clear the elevator for use, and that it was not necessary to speak. The platform went down about two feet. The truck tipped towards the plaintiff. In this way it was that he received the bodily injuries; when the case fell against him, be made a loud noise and forthwith the platform was raised again, so as to be level with the floor.

From these facts it is evident that the plaintiff understood the way of working the elevator, and in particular the liability of a premature going down of the platform. When, after knowledge of this, he continued in his service, he bore the risks which he saw and understood. Indeed, the immediate occasion of the accident was that he did not make known in time to Leib below that he was using the elevator. Such had been the practice of years and the plaintiff knew the necessity of it. After he did speak loud enough, the platform was returned to a level with the fourth floor. On the other hand, if Leib’s negligence in the management of the chain and of the rope that let on steam caused the accident, it was the negligence of a fellow-servant that would forbid a recovery by the plaintiff.

The action of the judge below was called for by the evidence.

Judgment affirmed, with costs.

Ditgro and Gildersleeve, JJ., concur.