[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 192 The parties were master and servant; the latter, in the course of his employment received an injury, for which he 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 storehouse, having therein an elevator moved by steam, and operated through an engine controlled by an engineer. The plaintiff was in her employ as a laborer, and while in the warehouse removing grain from *Page 194 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 storehouse 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), 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 the appeal is taken, 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, but relying for a defense upon testimony tending to show that in using it 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 silent. Upon the other, the one now presented, we think the appeal should succeed. The complaint charges that the elevator and *Page 195 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, first, in failing to have a proper space overhead; second, in failing to have any safety clutches or automatic appliance to guard against the fall of the elevator if the rope broke; or, third, a device by which the engineer could ascertain where the elevator actually was in relation to the floor at which he wished it to stop. 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 none. There is no ground for an apprehension even that the machine or its appliances had been impaired by use, or that, for any reason, it was less safe or efficient than at first. Something is, indeed, said by one witness as to the rope showing signs of wear or abrasion, but the rope did not break where such condition appeared, nor in the course of its ordinary and proper use, but because it was exposed to an unnatural tension, in resisting, while checked by the pulley-beam, the whole power of the engine. If there was any defect it must have been in its original construction. Against that supposition the evidence is all one way. A master is not bound to furnish the best of known or conceivable appliances; he is required to furnish such as are reasonably safe (Burke v. Witherbee,98 N.Y. 562; Probst v. Delamater, 100 id. 266), and to see that there is no defect in *Page 196 those which his employes must use. (Gottlieb v. Railroad Co.,100 N.Y. 462.) The test is not whether the master omitted to do something he could have done, but whether, in selecting tools and machinery for their use, he was reasonably prudent and careful; not whether better machinery might not have been obtained, but whether that provided was in fact adequate and proper for the use to which it was to be applied. These rules are not violated when such machinery becomes unsafe, only when negligently or carelessly used. (King v. R.R. Co., 66 N.Y. 181; S.C., 72 id. 607.)
The machinery consisted of an elevator, an engine and its appliances. They were conclusively proven to be of a kind very commonly in use when the one in question was put in, constituting, indeed, the ordinary and customary form of grain or freight elevators, and in frequent and common use in hotels, breweries, printing-houses and public buildings. The engine was a single cylinder, ten-horse power, link motion, operated by the use of the lever in starting and stopping, and also with a throttle valve similar to that of a locomotive, operated by the engineer. It was placed by the side of the elevator, rigged with a double rope of wire, which led directly from the elevator to the drum. The engineer's place was at the engine facing the drum, and by his evidence and that of others, it appears that its motion was entirely and easily under his control. He could stop the elevator at any point he chose by using the lever or throttle valve, and the rope was marked with white paint to indicate the different floors at which it might be required. The whole apparatus, was put in under the direction of a competent manufacturer of many years experience, who testified — and of that there was no contradiction — that he had hundreds then running, similarly constructed, for the carriage of freight and employes in charge of it, among others, miners, "lifting," he says, "thousands per day." They were put in leaving a distance between the cross-beam of the elevator and the pully beam above it, varying from six inches to three feet. The greater distance was the safest, but a short *Page 197 distance, when there was a double rope, was safer than a greater distance with a single rope. And, having regard to a freight elevator, as distinguished from a passenger elevator, the witness for the plaintiff declares that one so constructed and tended, was "the usual method and safe." The space between the elevator and the beam above was in this instance eight inches, but all agree that operated as this was with a double rope, sixteen inches of rope must pass around the drum to raise the elevator to the beam. The elevator was intended as a freight elevator only; it had a platform but no sides. It had been in use since 1879, and for two years at least before the accident, causing no harm and complained of by no one. The same machine was continued in use for several years afterwards, and down to the time of the trial with no different result, and there is nothing to show that, when used with ordinary and reasonable care, there was any reason to suppose harm or mischief could result from it. This fact brings the case directly within the rule that when an appliance or machine not obviously dangerous has been in daily use for a long time, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of imprudence or carelessness.
Assuming the plaintiff's relation to the elevator to have been that of a passenger, he had ceased to be one at the time of the accident. He was going neither up nor down, nor was he intending to do either. He had been carried safely from the basement to his destination, a track or landing seven feet above the second floor, and thirty feet from the place from which he started; he there got off on the landing. It is obvious that there he was perfectly safe, as safe as he could have been in any part of the building. He was on a floor and off the elevator and outside of it. He was there as an employe, dealing with a quanity of oats in a car, and whether he came there by the elevator or the stairs could have made no difference. It was his duty as a servant to remove the car from the elevator, and he was engaged in the performance of that duty. He stood on the edge of the landing and was pushing the car from the *Page 198 elevator. His body, therefore, was, in fact, over the elevator, his feet upon the floor or landing, his hands having hold of the car. What then happened with which the construction of the elevator had anything to do? Nothing.
Asked by his counsel "What is the reason you didn't get it" (the car) "off," he answered: "He" (the engineer) "started up too quick." The elevator was perfectly secure except for that act of the engineer. But that act cannot be so construed as to imply a defect in the condition of the machine, or negligence in the master who furnished it, relying upon the co-servant's reasonable care in its use. The machine was started by means of the lever, which was intended to serve that purpose. It could have been stopped within the space of an inch before it had moved half an inch. Why did he start it and why didn't he stop it? Because he either heard or supposed he heard a signal to raise the elevator to a higher floor, or because through inattention or carelessness he moved the lever without a signal and without reflecting that it could have no occasion to go higher. Risk of danger from this source was a risk incident to the plaintiff's service. It was the act of a co-servant, done within the range of a common employment. As to this, also, it is apparent that whether the space between the position of the elevator and the beam above it had been six inches or three feet, could have made no difference. The engineer started to go to another floor, in his mind to go seven feet and upward; there was no such floor. The plaintiff was not negligent, but his co-servant was. The act causing his injury pertained to the duty of his co-servant, and the master is not liable for its improper performance. One who engages in work with others takes the chances, not only of his own negligence, but of the negligence of which his fellow-servants may be guilty; and it is as well settled as any rule can be that he cannot recover from the common master, damages in respect to the negligence of the fellow-servant any more than for damages arising from his own want of care.
In McCosker's Case (84 N.Y. 77), the yard master negligently at the wrong moment signalled to the engineer to back *Page 199 his train, and, as a consequence, the plaintiff's intestate was killed; a recovery in his favor was reversed upon the principle on which the rule referred to stands. Many other cases might be cited, but it is unnecessary. The plaintiff has failed to make his case an exception to that rule, and the judgment in his favor should be reversed and a new trial granted, with costs to abide event.
All concur, except Ruger, Ch. J., not voting.
Judgment reversed.