This action was brought by the administratrix of William Biddiscomb, deceased, to recover damages suffered by reason of the death *562of said Biddiscomb, caused by the falling of an elevator which was operated in the defendants’ factory at One Hundred and Thirtieth street and the Boulevard. It appeared from the evidence that the elevator was in a mill leased by the defendants for two and one-lialf years from the 10th of April, 1895; that the deceased on the 15th of February, 1897, having loaded a bale of wool on the elevator at the basement, ascended with it to the third floor and then unloaded the bale, taking it to a room on that floor. While the deceased was gone from the elevator, the cable which supported the elevator car unwound from the drum, which was situated in an adjoining shaft. When he came back lie stepped into the elevator and the car fell to the cellar, and from the injuries occasioned by the fall he died. It appears from the evidence that the elevator in question was one in common use and that the appliance for stopping it in case of a breakage of the cable or in the event of its becoming slack, was the ordinary appliance used for such purposes. It further appeared that the elevator was operated by an iron bar or pipe running from the basement to the roof, which was pulled up or down as the operator desired to go up or down, and that the car was stopped by the centering of a clutch. If the bar was pulled too far up, the cable unwound upon the drum and the car descended; if pulled too far down, the cable wound up on the drum and the car ■ascended. As above stated, the drum in question was situated in an adjoining shaft and the cable from the drum passed over two pub leys to the kingbolt which was at the top of the car. The safety clutch was prevented from operating by the pulling of the cable upon the kingbolt. When such tension was relieved by the breaking of the cable or by its becoming slack, the clutch was supposed to operate and to prevent the falling of the car. On the occasion in question the deceased upon stopping the car must have pulled the rod too far so that he reversed the action of the drum and the cable unwound from the drum and hung down in the shaft in which the drum was situated. The car for some reason, probably because it was jammed, did not descend as it should have done under those circumstances, but stuck fast until the deceased stepped into it, when the jar seems to have released it and it started to fall, pulling the slack of the cable over the pulleys and going down to the cellar. The cable was not broken.
*563The question presented upon this appeal is whether the defendants provided a reasonably safe appliance for the use of the deceased. The evidence shows that the elevator was of a construction in common use, and the safety appliances were such as ordinarily obtained in such structures. The defendants were not the insurers ■of the safety of the appliances provided by. them, but they were bound to use reasonable diligence in providing safe appliances for the use of their employees. From the evidence it would seem that the clutch in question ought to have operated under the circumstances presented here. If, however, the defendants used reasonable care in seeing that these appliances were in order, the fact that they did not operate under circumstances in which they might naturally have been supposed to do so, does not make them liable for the injuries sustained. There is evidence it is true upon the part of some of the witnesses who were examined on behalf of the defendants, to the effect that with the slack of the cable in the adjoining shaft the clutch could not be expected to work because of the tension which the weight of the cable hanging in the adjoining shaft exerted upon the kingbolt of the elevator. It may be that there was a disputed question of fact in this regard, which could •only be resolved by the jury if the defendants claimed exemption from liability upon this ground only.
It appears that from October, 1896, to the latter part of January, 1897, the mill was shut down, and that before it was started up in •January the elevator was carefully overhauled by one of the defendants and by their engineer, the clutch examined, oiled and tried by dropping the elevator, and found to be in good order. It is urged upon the part of the appellant that the machinist was not a proper person to conduct such an examination, and that he could not judge as to whether the clutch was in good order or not. The evidence upon the part of the plaintiff, hówever, shows that the clutch was .not an intricate piece.of machinery by any means, and that an ordinary inspection by a competent man would enable him to discover whether it was in Avorking order, and there is no evidence but that Grill, the machinist, was qualified as such. Indeed, the evidence of the trial of the elevator and that the safety clutch was found to act, Avas the best kind of inspection that could possibly have been made. The criticism that this trial took place ten feet from the bottom of *564the shaft, and, therefore, presented no evidence that the clutch would work at the top of the shaft, hardly needs comment in view of the evidence as to what causes the clutch to operate.
Upon a consideration of the evidence, therefore, it would appear that the defendants had performed their full duty in respect to this clutch and had used -reasonable care in providing a safe appliance for their employees. The theory of the plaintiff, as stated by counsel, seems to be that a master must see that the place where his servant works or the appliance with which his servant is provided or the machine he operates is safe. We are not aware of any such rule which makes the master an absolute insurer of the safety of the appliance and of the place where his servant woi'ks. As has already been stated, he is bound to use reasonable care in this regard; and that is all that the law requires.
Hone of the exceptions to the admission and rejection of evidence seems to be of sufficient gravity to call for special comment.
The judgment appealed from should be affirmed, with costs.
Rumsey, Patterson and Ingraham, JJ., concurred; Barrett, J., dissented.