Rumetsch v. John Wanamaker, New York, Inc.

• Court: New York Court of Appeals
• Citation: 216 N.Y. 379,110 N.E. 760
• Decision Date: 14 December 1915
• Parties: RUMETSCH, v. JOHN WANAMAKER, NEW YORK, Inc.

216 N.Y. 379
110 N.E. 760

RUMETSCH,
v.
JOHN WANAMAKER, NEW YORK, Inc.

Court of Appeals of New York.

Dec. 14, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Matilda Rumetsch against John Wanamaker, New York, Incorporated. From an order of the Appellate Division (154 App.Div. 800, 139 N.Y.Supp. 385), reversing a judgment entered in favor of plaintiff upon a verdict in her favor, and granting a new trial, plaintiff appeals. Reversed, and judgment of the Trial Term affirmed.

See, also 160 App.Div. 897, 144 N.Y. Supp. 1143.

The Appellate Division in its order stated that the judgment is reversed upon questions of law only, and that the questions of fact involved in the case have been passed upon by it and affirmed.

The nature of the action and the facts, so far as material, are stated in the opinion.

Herbert C. Smyth, of New York City, for appellant.

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

CHASE.

On the afternoon of April 27, 1909, a passenger elevator in regular use at the well-known department store of the defendant in the city of New York suddenly fell. The plaintiff, among others, was in the elevator at the time of its fall, and sustained personal injuries, for which this action is brought. The immediate cause of the fall was the breaking of two steel straps or supports, by which the elevator car was attached to certain I-beams, a part of the elevator construction. A description of the straps and their relation to and connection with the elevator car and machinery is given by Justice Burr in the opinion written by him at the Appellate Division, when the judgment entered on the verdict in favor of the plaintiff was reversed by that court. Rumetsch v. Wanamaker, New York, Inc., 154 App.Div. 800, 139 N.Y.Supp. 385. The straps that broke were designed, manufactured, and installed by the Otis Elevator Company for the purpose of supporting the hoisting cables of the elevator as a part of, and pursuant to a contract between the defendant and said company, and in accordance with specifications requiring the construction of a passenger elevator with a carrying capacity of 2,500 pounds. The defendant accepted the elevator on October 29, 1907, and it was used with the straps as described until it fell, about 18 months thereafter.

The questions to be considered on this appeal are few, because of the stipulations and rulings made at the trial. All questions of the defendant's negligence other than those relating to the sufficiency of the supporting straps as installed, and the propriety of using and continuing to use the elevator with such straps thereon, were withdrawn from the jury by the consent of the plaintiff. The court, without objection by the plaintiff, charged the jury that:

“It has been admitted that this elevator was purchased of competent manufacturers; that the Otis Company was a competent and reputable manufacturer of elevators. So in that respect in regard to the purchase and primary installation of this elevator no charge of negligence can be sustained.”

The court left to the jury in substance the question whether, notwithstanding the defendant had purchased the elevator from and had the same installed by a competent manufacturer, the defects therein by reason of such straps were so open and so obvious that a prudent person should have known or have ascertained by inspection that the same was incapable or would become incapable of supporting the burdens which were imposed upon it. The defendant insisted at the trial that there was no evidence to justify the court in submitting any question as to the defendant's negligence to the jury, and the Appellate Division has sustained such claim.

[1] The duty of the defendant to inspect the elevator from time to time could not be delegated. As a corporation it had no personal identity. It could only act through others. In employing others to make the inspection it was its duty to employ persons of reasonable skill and experience to perform the duty so imposed upon it. For the failure of such person to make such reasonable inspection and to ascertain a defect that was open and visible to a person of such skill and experience the defendant is liable.

[2] The jury could have found that the supporting straps placed vertically, but so shaped as to have two right angles with a space between the angles of about three inches and also so placed that the horizontal part between said right angles had no support, was not only unusual, but substantially without precedent. They could also have found that the supporting straps so fastened would, when used, necessarily have some vibration arising from the starting and stopping of the elevator and the running of the same. The strain at the inner angle where each of the straps broke was shown without contradiction to be several times the strain of a...