Brennan v. Gordon

• Decision Date: 25 February 1890
• Citation: 118 N.Y. 489,23 N.E. 810
• Parties: BRENNAN v. GORDON et al.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 489

23 N.E. 810

BRENNAN

v.GORDON et al.¹

Court of Appeals of New York, Second Division.

Feb. 25, 1890.

Appeal from a judgment of the general term of the court of common pleas of the city of New York, affirming a judgment of the favor of the defendants entered upon a verdict of a jury. The action was brought by the plaintiff, who was a servant of the defendants, against them to recover damages for personal injuries occasioned by the fall of an elevator which the defendants had just put into their store and business and which was being put to use for the first time. The case has been twice tried. On the first trial the complaint was dismissed. This was reversed by the general term, and a new trial was ordered. Reported in 13 Daly, 208. On the second trial the jury rendered a verdict for the defendants, and this appeal is to review such judgment. The defendants were a firm doing business in manufacturing preserves, in the city of New York. The plaintiff had been in defendants' employment in such business, as one of the porters, for a long time prior to March 1, 1881, when this accident occurred. In the month of February, 1881, the defendants caused to be erected and put into their building an elevator to be operated by steam, and to be used in carrying persons and goods to the various floors and lofts in the building in which they were doing business. Henry Dillworth (who was a brother of the defendant William H. Dillworth) had been in the defendants' employment, as general superintendent of defendants' establishment, for some time, and exercised the functions of hiring and discharging employes in that business. It is claimed by plaintiff, and the trial proceeded in the main upon that theory, that the defendants selected the plaintiff, among their numerous employes, to run and manage this elevator; that the plaintiff had no previous experience or knowledge in running an elevator, and the defendants undertook to instruct him in that respect, and for the purpose assigned as such instructor said Henry H. Dillworth. Previous to this time his duty in the defendants' service was that of porter, moving boxes, unloading trucks, wrapping bottles, washing and capping them, etc. The defendants knew Henry H. Dillworth. Previous to this skill in running said elevator, and had never before performed, or attempted to perform, such a service. In accordance with these purposes, the defendants informed the plaintiff that they had selected him to run and operate the elevator, and that said Henry C. Dillworth, who had knowledge and experience in that service, would instruct and qualify him to perform such service. He elevator was built and furnished to the defendants by the firm of Reedy & Co., who were doing a large business in that line. One Mulcahy and Sanders, employes of Reedy & Co., who had constructed the elevator, placed the elevator and apparatus in position, and prepared it for use. It is claimed by the defendants that Mulcahy, foreman of Reedy & Co., gave instruction to the plaintiff, at least in part; and there is some evidence tending to show that at times, when the elevator was in operation, carrying things from below to the floors above, and with which Mulcahy was engaged in respect to another elevator, or in making some changes in connection with another elevator, had given the plaintiff, when he was with him in the car or elevator, some instruction in regard to running it; and it is sought thereby, on the part of the defendants, to relieve themselves from the consequences of any incompetency or failure to impart instruction sufficiently to the plaintiff by the said Henry Dillworth. The elevator had been used more or less on Monday, the 28th day of February, 1881, and was in use on the Tuesday succeeding; and at about 5 o'clock on this latter day, while the elevator was carrying three beams to the upper floor of the building, and had proceeded up with the beams to be used to strengthen some shafting used in connection with other apparatus on the top floor, and at a time when the plaintiff, with another of the employes of the defendants, was in the elevator, and just after two of the beams had been taken out of the elevator at the third floor, and with the third and longer beam, with its lower en resting on the floor of the elevator, and its upper end protruding beyond the top of the elevator, the elevator was started, with this third beam, to wards the floor above. The elevator was stopped between the third and fourth floors, in order to take out the third beam before the upper end of it should come against the roof, and, while taking or preparing to take out this third bean, the elevator was started by somebody, and the evidence leaves it in some doubt who that person was, or started without any one's interference from some inherent defect in the machinery, as it is claimed, and, while thus moving up, the upper end of the third beam came in collision with the roof, which caused the cogs of the wheel upon the apparatus, one or more of them, to break, and thereby the elevator...