Baxter v. Richardson — 8 N.Y. St. Rep. 155

Majority

p. 155

Robert Baxter, App’lt, v. George Richardson, Resp’t.

(New York Superior Court, General Term,

Filed February 16, 1887.)

Headnote

J. Negligence—Question eor the juey—Dismissal oe complaint— Error.

The plaintiff "was employed by defendants to do some carpenter work near an elevator which was in the use and possession of defendants. While, for a purpose connected with that work; the plaintiff stood upon the platform of the elevator, and, to steady himself, took hold of a chain with his hands which, with _ other chains, supported the elevator, the elevator began to rise and plaintiff’s hand, while on the chain, was drawn against a pulley and was injured. Held, that as there was evidence that would have justified the jury in finding that plaintiff was not the cause of the elevator starting, although a verdict to the contrary might be sustained, it was for the jury to judge what was the cause of the elevator moving, and whether by any negligence of the defendants or their agents.

3. Same—Contributory negligence.

Though the act of the plaintiff in taking hold of the chain contributed to the injury, it would only be a negligent act on the assumption that he ought to have anticipated the likelihood or possibility of the elevator starting and endangering the hand, and when there are no facts to show that as a matter of law he should have anticipated the danger, it was also for the jury

3. Same—Risk taken by employee—Duty op employer.

Plaintiff took the ordinary risks incident to the work he was sent to do, but the defendant was bound not to expose him to unreasonable dangers which could not be foreseen and which the exercise of ordinary care on the part of the defendant or his agents or servants would have prevented. Ingraham, J.

p. 156

Appeal from judgment dismissing complaint entered upon direction of the judge.

Edward C. James, for app’lt; James W. Smith, for resp’t.

The action was for damages for the negligence of defendants.

The plaintiff had been employed by defendants to do-some carpenter’s work near an elevator which was in the use and possession of defendants. .

For a purpose connected with that work, the plaintiff stood upon the platform of the elevator to “steady himself.” As he testified, he took hold with his hand of a chain which, with other chains, supported the elevator. This chain passed around an iron pulley; when he was thus standing the elevator began to rise, and plaintiff’s hand, while on the chain which he held grasped, was drawn against the pulley and was injured.

On the trial the court dismissed the complaint.

The learned counsel for the respondent argued that the judgment should be affirmed upon two grounds. The first, is, that on the whole evidence it appears that the plaintiff himself started the elevator. The evidence on this point would have justified the jury in finding that the plaintiff was not the cause of the elevator starting, although, on the other hand, a verdict to the contrary might be sustained.

The jury was the judge of what was the cause of the elevator moving.

The second ground is that plaintiff was negligent" iff taking hold of the chain.

There is no doubt that this act contributed to the result of the hand being hurt. It would only he a negligent act, on the assumption that • the plaintiff ought to have anticipated the likelihood or possibility of the elevator starting- and endangering the hand. There are no facts to show that the plaintiff, as a matter of law, should have anticipated the danger. This matter was also for the jury.

Judgment reversed, and new trial ordered, with costs to-abide the event.

Freedman, J., concurs.

The elevator on which the accident happened was under the control of the defendants or their agents. There is no evidence that the elevator was out of order, or that it would move, unless some one started it.

There was evidence from which the jury could find that the plaintiff did not start the elevator; and, on the testimony, it would be a question for them to say whether the elevator moved by reason of any negligence of the defend- ' ants or their agents.

p. 157

The plaintiff was lawfully upon the premises, and when the owner of lands, in the prosecution of his own purposes or business, invites another, either expressly or impliedly, to come upon his premises, he cannot with impunity expose him to unreasonable or concealed dangers. Larremore v. Crown Point Iron Co., 101 N. Y., 395 ; 1 N. Y. State R., 43.

Plaintiff came to work on this elevator by invitation of the defendants; while there, he took the ordinary risks incident to the work he was sent to do; but the defendant was bound not to expose him to unreasonable dangers which could not be forseen, and which the exercise of ordinary care, on the part of the defendants or their agents or servants, would have prevented.

If, then, plaintiff was exposed to such danger by reason of the negligence of the defendants or their servants, and and there was no negligence on his part, and he was injured, I think the defendants are liable.

It was a question, therefore, for the jury to say whether or not the defendants or their agents negligently started the elevator.

I concur, therefore, that the judgment should be reversed.