Stringham v. Stewart

• Decision Date: 24 November 1885
• Citation: 3 N.E. 575,100 N.Y. 516
• Parties: STRINGHAM v. STEWART.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 516

3 N.E. 575

STRINGHAM

v.STEWART.¹

Court of Appeals of New York.

Filed November 24, 1885.

Chas. C. Smith, for appellant, Thomas H. Stringham.

Horace Russell, for respondent, Cornelia M. Stewart.

RUGER, C. J.

At the close of the plaintiff's evidence the defendant moved for a nonsuit upon the several grounds of contributory negligence on plaintiff's part, the combination of such negligence and that of a coservant in producing the injury, and the absence of any evidence of negligence on the part of the defendant. This motion was denied; the court thereby assuming that the evidence was then sufficient to carry the case to the jury. The defendant then gave evidence tending to controvert and impeach the testimony produced by the plaintiff, but we think failed to furnish such a preponderance as rendered the questions arising thereon matters of law. At the conclusion of the evidence the defendant renewed his motion to nonsuit, and to dismiss the case on the whole evidence, and the plaintiff asked to go to the jury upon the questions of fact in the case. The court, without stating the reasons therefor, granted the defendant's motion, and denied that of plaintiff. To both of these rulings the plaintiff excepted. Upon appeal to the general term the judgment of the trial court was affirmed.

We are unable to see upon what ground these various decisions can be reconciled or supported. Upon the trial, and while the plaintiff was engaged in giving evidence of experts as to the proper construction of elevators with respect to their safety, the defendant's counsel interrupted its progress by conceding that the elevator in question was not constructed as one intended to carry passengers or people should be. This concession necessarily forecloses any discussion as to the negligence of the defendant in omitting to perform the duty of furnishing safe and adequate machinery for the performance of the work in question, and narrowed the issues to be tried to those of contributory negligence, whether the defendant's employes were authorized or permitted to make use of the elevator in prosecuting their work, and whether the injury occurred in consequence of the use made of it by the plaintiff in riding to the upper floor. The evidence clearly required the submission of these questions to the jury. It showed that the injuries occurred in consequence of the fall of the elevator used in defendant's warehouse, at Garden City, in the prosecution of work which the plaintiff was employed to perform. This elevator was used in hoisting grain from the lower to the upper floors of the warehouse, with the view of having it there distributed either into a fanning-mill to be cleaned, or into binds for storage. The usual method of carrying on this business was for the servant charged with its performance to load the grain into a van capable of holding some 30 or 40 bushels, and when loaded to push it into the elevator and cause the engineerto apply the power necessary to arise it to the floor intended, and when that was reached, to attend there to its distribution. On arriving at that floor, certain marks upon the cable running into the engine-room indicated to the engineer that the elevator had reached its place of destination. That point, on the occasion in question, was a platform above the second floor, communicating with tram-ways upon which the vans were to carry the grain to the desired place. When the elevator arrived at this platform six inches space alone interposed between the top of the elevator and the pulley-beam through which the cable ran. There was evidence showing that it was the custom of the servant having charge of the van to ride in the elevator to the place of destination, and then push the van onto the tram-ways, and, along them, to the place of delivery. Upon the occasion in question the plaintiff ascended with the elevator until it stopped, about an inch below the level of the intended platform; he then stepped from the elevator upon the platform, and attempted to push the van off onto the tram-ways. While thus engaged, the engineer suddenly applied the power and caused the elevator to ascend until its top struck the pulley-beam, and, being thus prevented from going higher, the cable was broken, and the elevator, with its load, fell a distance of some 30 or 40 feet, to the bottom of its well, carrying the plaintiff with it and causing serious injuries to him.

If the question as to the sufficiency of the evidence to carry the question of the defendant's negligence to the jury was now open for consideration, we should entertain no doubt of the plaintiff's right to have it determined by them. The proof upon the trial showed that no appliance or safety-guard, such as is usual and customary, even on freight elevators, to arrest their fall in case of a break in the cable, was provided by its constructors, and that its motion was regulated entirely by an engineer who could have no ocular observation of its position. It is apparent that the space between the pulley-beam and the elevator, when it arrived at the upper platform, left but little leeway to guard against the possible inattention or error of the engineer, or his inability to control with mathematical precision the motion of the elevator and arrest its ascent in time to avoid a collision between the car and the beam suspending the cable. The danger of so constructing an elevator as to require unremitting attention and faultless accuracy on the part of a fallible agency in the application of power thereto, in order to avoid serious injury to persons transported on it, is so obvious that it needs neither proof nor argument to establish its existence. The evidence did show that the elevator and pulley-beam had collided before, and the marks of their contact were apparent on the beam; and the defendant's superintendent testified ‘that the danger was so apparent it was pointed out by me to each one of them, and I indicated where the rope would be broken, exactly where it was.’ ‘The point of difficulty was the overwinding of the rope by the extra turning of the engine and striking on the top, and sooner or later an accident would occur of that nature.’ Upon the trial the defendant did not even attempt to establish the safety of the elevator's construction, but directed her evidence to those facts tending to show that the workmen were not authorized to ride on it while it was transporting grain; and her superintendent testified that he had previously notified the plaintiff and another servant of the danger to be apprehended by those riding on it, and forbade them from doing so. On the other hand, testimony was given showing that the superintendent had himself ridden on it in the view of the workmen; that he had directed the servants employed in moving grain to ride thereon while performing their work; and it was expressly testified by each of the employes called, who had been engaged in working with the elevator, that he had not been forbidden to ride on it, or notified that it was dangerous to do so. It was in proof that visitors had occasionally been taken up in the elevator, and the defendant's superintendent testified that he had told the employes that it was safe to come down in it, or ride to the second floor, but not to the platform above. No written or printed notice had ever been given by the defendant that the elevator was unsafe, or not intended for the use of employes in performing their work; and it was in proof that it was constantly used by them, with the knowledge of defendant's superintendent. A serious question of fact thus appears to have been presented by the evidence as to the use intended to be made of the elevator by the defendant. It was quite competent for the jury to find upon the evidence that the servants of the defendant were induced and encouraged to ride on it...