Simmons v. Peters

Defendant was engaged in the manufacture of shirts on Noxon street in the city of Syracuse on the 7th of April, 1890, the business being under the supervision of her husband, Henry Peters. She occupied half the basement, half the first floor and the whole of the fourth floor. On the morning of April 7, 1890, which was a dark, rainy morning, Brown, one of defendant’s employees, having reached the store shortly after seven o’clock, found the elevator door closed and .locked. "While he was unlocking the door the plaintiff and her two daughters and Miss Garthe and Miss Washner entered the building; they advanced toward the elevator, some eighteen and a half feet distant from where they entered the building, and at that moment Brown called out to them to hurry, and he opened the elevator door, stepped inside and reached for the cable, so as to bring the elevator car down, which was on the fourth floor. As he swung into the elevator, he seems to have been partially, if not wholly, out of sight of the plaintiff, who was then some nine feet distant from him, and when he reappeared the plaintiff was some four or five feet distant from him. Brown was about three or four feet from the door when she walked in. Brown, on taking hold of the cable, discovered that the elevator was locked at the fourth floor, and, as he turned and stood in the doorway facing the women with his back against the casing, his right hand was on the cable and his left holding the door, which had closed against his arm. The door was open about two and a half feet. The plaintiff continued to walk steadily forward. Miss Garthe had a wet umbrella, and she jokingly spattered some drops of water on Brown, and he let go liis hold upon the cable and the door and turned from the elevator, suddenly took a step or two from the doorway and

In chapter 462 of the Laws of 1887, in section 8, it is provided as follows: “ It shall be the duty of the owner, agent or lessee of any manufacturing establishment where hoisting shafts or well holes are used, to cause the same to be properly and substantially enclosed or secured, if, in tlie opinion of the inspector, it is necessary to protect the life or limbs of those employed in such establishments. It shall also be the duty of the owner, agent or lessee to provide, or cause to be provided, such proper trap or automatic doors, so fas

G-uetig, the factory inspector, who had been, in the discharge of his duty, upon the premises of the defendant and made an examination of the door, testified as follows, viz.: “ I worked the door myself ; it didn’t work; I opened it; it didn’t close when the elevator left it; it was not closed at the time; it was open when I came there. * * * The door itself and its connections had no connection with the elevator; * * * an automatic door on an elevator is a door that works by the action of the elevator itself, either going up or coming down opens the elevator door when it strikes a landing, and closes it when it leaves it, a door which is governed and held in place by the action of the elevator in its motion ascending or descending.” The witness added, “ Then there are others that have trap doors that open or shut. * * * There always must be a weight to close them.”

The evidence shows that the defendant’s elevator door was hung by iron supports to wheels resting on the tracks moving in grooves. The track inclined toward the shutting of the door, and the door, if it followed the incline downward, would shut. It was about six feet in width and six and a half to seven feet high, and the sill was a solid board grooved out so as to leave a shoulder on each side. Trucks were used on the ground floor for wheeling goods, and they were wheeled across the sills into the elevator, and they had slivered the shoulder and worn it down so that it had become uneven, rounded, and would allow the door to catch. “As the door approached being shut, it would gradually go down into this groove, and the shoulders being worn off, it didn’t run perfectly straight. It would catch on those shoulders and stop, the lower edge of the door, instead of shutting, and would then stand partly open without any one’s holding it.” That condition of things had existed some six months prior to the accident. It appeared in the evidence that “ before the time of the accident there was no person whose business it was to operate the elevator regularly; ” and that, “there was no published or oral rules with reference to its operation.” Whether the

Plaintiff testified: “ I knew nothing about the appliances the elevator had or didn’t have to cause it to open or -shut. I never saw the door open only when the elevator was there, and somebody there to hold it open. I had never seen it standing open without anybody holding it as upon this morning.”

In Benzing v. Steinway & Sons ( 101 N. Y. 547 ) it was said : “ The risks of the service which a servant assumes in entering the employment of a master are those only which occur, after the due performance by the employer of. those duties which the law enjoins upon him.” (Ford v. L. S. & M. S. R. R. Co., 124 N. Y. 493 .) The rule is restated in Abel v. D. & H. C. Co. ( 128 N. Y. 662 ); Pantzar v. Tilly Foster Iron Mining Co. (99 id. 369); Davidson v. Cornell (132 id. 234).

In Knisley v. Pratt ( 75 Hun, 323 ) allusion was made to the rule in the following language: “ A servant who enters the employ of a master assumes the risk incident to such employment, where the dangerous structures or implements are open and visible imd known to him, but in case the employer owes such employee a duty which is not discharged and is guilty of negligence in not performing such duty, if the injury is the result of such neglect of duty, the risk is not one which is assumed by the servant.” Ye think it should not be stated “ as matter of law that under the facts of the present

In Simpson v. New York Rubber Co. ( 80 Hun, 415 ) the rule is again stated and a majority of tlie court held in that case that a party, “knowing that the machinery is not guarded as prescribed by statute, does not waive the provisions of the statute, nor does he assume such obvious risks as are incident to the use of the machinery without the required safeguards.” In that case the plaintiff knew of the defects and continued in the employ, and the trial court refused to charge that he waived the provisions of the statute and assumed such obvious risks as were incident to the use of the machinery in that condition, and a majority of the court at General Term approved of the refusal to so charge. In the case in hand the evidence was sufficient to justify the jury in finding that the plaintiff had no knowledge of the defects and insufficiencies in regard to the appliances and surroundings of the elevator in use upon defendant’s premises. Under such circumstances we think it was error to hold as matter of law, as apparently the trial judge did, that the plaintiff assumed the risks occasioned by such defects and deficiencies.

The case of Cullen v. Norton ( 36 N. Y. St. Repr. 359 ) differs from the case in hand. There the accident resulted from a negligent act done in the very course of the work and by a fellow-workman of the deceased. The master had provided a competent and experienced foreman, who had been in his employ a number of years and was not chargeable with the consequences “ of a place for work made dangerous only by the carelessness and neglect of a fellow-servant.”

We think the nonsuit was erroneously granted.

MaetiN and MeewiN, JJ., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.