Condran v. Park & Tilford

• Decision Date: 05 January 1915
• Citation: 213 N.Y. 348,107 N.E. 567
• Parties: CONDRAN v. PARK & TILFORD.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 348

107 N.E. 567

CONDRAN

v.PARK & TILFORD.

Court of Appeals of New York.

Jan. 5, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Ellen Condran, as administratrix of Michael F. Condran, deceased, against Park & Tilford. From a judgment of the Appellate Division of the Supreme Court, First Department (159 App. Div. 900,143 N. Y. Supp. 1111), affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Reversed, and new trial granted.

Frank Verner Johnson, of New York City, for appellant.

Harry E. Herman, of New York City, for respondent.

CARDOZO, J.

The plaintiff's intestate lost his life in the same accident that caused the death of James Condran, his brother. In the action brought to recover damages for the death of James we have stated the facts, and need not now repeat them. We hold here, as we held there, that the overlapping cables created a dangerous condition from which the jury had the right to infer the negligence of the defendant. It seems fairly certain that, if it had not been for this condition, the accident would not have happened. The refusal to dismiss the complaint was, therefore, proper.

[1] Many of the defects which in the other action were erroneously submitted to the jury as evidence of the defendant's fault were excluded from the jury's consideration in the case at bar. We think, however, that there was no evidence from which an inference could fairly be drawn that the fall of the elevator was due to some intrinsic defect in the cables, irrespective of their tendency to leave the grooves of the drum, and that the refusal to say this to the jury was error. A witness for the plaintiff characterized the cables as threadbare, worn, and shiny. This statement referred to their condition at the point of breakage, after the strands had separated and the car had fallen. There is no evidence that any signs of wear were visible before the accident, and no evidence that, if visible, they were sufficient to indicate that the strength of the strands had been impaired. The cables, after slipping from the grooves, were caught between the drum and the shaft, and, in the words of a witness, were ‘chewed up, and jammed and injured.’ We have no right to infer from their condition at that time, after all these things had happened to them, that a like condition existed or was visible before. Welsh v. Cornell, 168 N. Y. 508, 61 N. E. 891. There is no suggestion in this record that the cables had been observed before the car fell, and had been then found to be ‘raveled.’ The obscure reference to such a condition which we have pointed out in the other case is lacking in the case at bar. It is true that some words in the testimony of the witness Lynch are construed by the plaintiff's counsel as descriptive of the cables, not merely at the point of breakage, but through their entire length. We do not think the testimony will fairly bear that construction. At best, it is too vague and uncertain...