Stringham v. Stewart

• Decision Date: 27 November 1888
• Citation: 111 N.Y. 188,18 N.E. 870
• Parties: STRINGHAM v. STEWART.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 188

18 N.E. 870

STRINGHAM

v.STEWART.¹

Court of Appeals of New York.

November 27, 1888.

Appeal from supreme court, general term, Second department.

Action for $50,000 damages for personal injuries received by plaintiff, Thomas H. Stringham, while in the employ of defendant's testatrix, Cornelia M. Stewart. Plaintiff was employed in a grain warehouse on Mrs. Stewart's farm at Garden City, Long Island. The grain was cleaned and stored in the second story, to which it was carried in a grain car on an elevator. The elevator consisted of a platform about six feet square, to two sides of which were attached upright posts, which were connected by a cross-beam at the top. Attached to the cross-beam was a wire rope, about an inch in diameter, which ran up over a pulley-wheel attached to a beam at the top of the shaft, and thence down around a drum in the basement, operated by a single engine near the elevator. It was controlled by an engineer, who was guided in stopping the elevator by white paint-marks on the rope. When the elevator was raised so that its platform was level with that on the upper floor to which the grain was taken, there were eight inches between the cross-beam of the elevator and the pulley. September 6, 1879, plaintiff, engaged in taking up grain, rode up with the car on the elevator. The elevator stopped when its platform was about one and one-half inches below the desired level. While plaintiff was attempting to push the car off, the elevator was suddenly started, and ran up till the cross-beam struck the pulley-wheel, when the strength of the engine, pulling against the obstruction of the beam, broke the elevator rope, and elevator, car, and plaintiff fell to the foot of the shaft. Plaintiff had both his legs broken, and was permanently injured. The case was tried three times. On the first trial plaintiff had a verdict for $15,000. The general term reversed the judgment, and ordered a new trial. On the second trial the complaint was dismissed. This court reversed that judgment, and ordered a new trial, (3 N. E. Rep. 575.) On the last trial plaintiff recovered a verdict for $42,500, to which the court added an extra allowance of $2,000. Judgment was affirmed by the general term, 41 Hun, 643, mem.,) and defendants below appeal.

Horace Russell, for appellants.

A. H. Daily and Charles C. Smith, for respondent.

DANFORTH, J.

The parties were master and servant. The latter, in the course of his employment, received an injury for which be brought this action. He has recovered damages, against the exception of the defendant to the submission of any question to the jury, and the judgment in his favor should stand if there is evidence which, upon any just construction, tends to show that the defendant had committed any negligence to give occasion to the hurt. If not, the law affords to the plaintiff no remedy. It appeared that the defendant was the owner of a large farm, and, in connection with it, a store-house, having therein an elevator moved by steam, and operated through an engine controlled by an engineer. The plaintiff was in his employ as a laborer, and, while in the warehouse removing grain from the platform of the elevator, it was given an upward movement, which continued until, striking against a beam, the rope by which it was suspended broke, and the platform fell to the ground floor, carrying the plaintiff, and hence his injury. Did this happen by reason of any defect in the original construction or its subsequent condition, or through the negligence of the engineer in operating the machine? Upon the first branch of this question the learned trial judge instructed the jury that ‘the defendant had a right to use in her store-house any elevator and operating machinery she chose, provided she exercised reasonable care and prudence in having them safe and suitable; that she was not bound to use the most approved machinery or appliances in that business;’ and as to the question in hand he said: ‘If the machine was insecure through carelessness on the defendant's part, she would be liable, but that the operating of the machine was strictly the duty of a fellow-servant, and for negligence on his part she was not responsible.’ The action upon a former appeal was before this court, (100 N. Y. 516, 3 N. E. Rep. 575,) but upon a different record. We were then bound by a concession which narrowed the issues to those relating to contributory negligence on the plaintiff's part, and excluded any discussion as to the negligence of the defendant to furnish safe and adequate machinery for the performance of the work in question. Moreover, the facts established upon the trial since had, and to review which this appeal is brought, makes this a new case by presenting for our determination the very question then withheld, and which upon the former trial was left unanswered; the defendant on that occasion making no attempt to establish the safety of the elevator's construction, but relying for a defense upon testimony tending to show that in using the elevator the plaintiff was a mere volunteer, taking upon himself the risk of injury, and by his own conduct contributing thereto. As to that ground the defendant is now silent. Upon the other, the one now presented, we think the appeal should succeed. The complaint charges that the elevator and machinery were defective in their construction, in that they were unprovided with proper appliances for safety, and were insecure and unsuited for the purpose to which they were applied, and, moreover, that the engineer was incompetent to perform the duties assigned to him. No fault is now found with the capacity or skill of the engineer, and the argument in behalf of the respondent, and the printed briefs submitted in his behalf, attribute the accident to a defective machine or appliance, (1) in failing to have a proper space overhead; (2) in failing to have any safety clutches or automatic appliances to guard against the fall of the elevator if the rope broke; or (3) a device by which the engineer could ascertain where the elevator actually was in relation to the floor at which he wished to stop it. On the other hand, negligence and want of care on the defendant's part in regard to the machine, or any of its appliances, is denied, and the accident attributed to a mistake or error of the engineer in the management of his engine. The verdict, in view of the judge's charge above quoted, shows that the jury were of the opinion that the machine was defective in its construction, or that it had become defective by reason of the owner's want of care. Is there any evidence to support that finding? We find...