Kern v. De Castro & Donner Sugar-Ref. Co.

• Citation: 25 N.E. 1071,125 N.Y. 50
• Parties: KERN v. DE CASTRO & DONNER SUGAR-REFINING CO.
• Decision Date: 02 December 1890
• Court: New York Court of Appeals

125 N.Y. 50

25 N.E. 1071

KERN

v.DE CASTRO & DONNER SUGAR-REFINING CO.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from city court of Brooklyn, general term.

Action by Carl Kern against the De Castro & Donner Sugar-Refining Company for personal injuries to plaintiff while in the employ of defendant. A judgment for plaintiff, entered on the verdict of a jury, was affirmed on appeal to the general term; and from the judgment of affirmance, defendant appeals.

Joseph A. Burr, Jr., for appellant.

M. L. Towns, for respondent.

FINCH, J.

The plaintiff failed to establish any actionable negligence on the part of the defendant. We have had occasion quite recently to say that the master, in performance of his duty to his servants, is not bound to furnish the best known appliances, 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 p*1072 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, 18 N. E. Rep. 870. 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 was 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 and 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 screwgear which operated the elevator was the best for the purpose, and pointed out no...