This appeal is from the judgment in favor of the defendant dismissing the complaint entered upon an order setting aside a general *372verdict in favor of the plaintiff .and special findings, of the jury rendered in connection therewith.
The facts, so far as the same are material to the plaintiff’s alleged cause of action, were fully stated on the former appeal to this court (47 App. Div. 70) and on appeal therefrom to the Court of Appeals (166 N. Y. 188), and it is, therefore, unnecessary to restate them in this opinion.
The law as laid down by the Court of Appeals is the law of the case and binding upon this court in so far as the facts are the same as upon the former appeal. The Court of Appeals in reversing the judgment of this court held that the defendant owed the plaintiff’s intestate the duty of using reasonable care to guard him against and protect him from injury.. We are, therefore, to determine whether the judgment appealed from is right, when the rule as thus declared is applied to the facts as developed upon the trial. Upon the former trial the -defendant offered no evidence, and we held that the trial-court correctly instructed the jury that the. doctrine of res ipsa loquitur applied, and whether or not the defendant had offered a sufficient explanation of the cause of the plaintiff’s injuries was a question for the jury when subjected to the rule that the defendant was obligated to use “ the utmost care and diligence ” with reference to the appliances used in connection with and in the operation of the elevator, in which the intestate was at the time he was killed,. This instruction was held to be erroneous in that the defendant was only obligated to. exercise ordinary care. The sole question presented, therefore,- on this appeal is whether or not the evidence jus.tified a finding that the defendant was remiss in his duty in exercising that degree of care which the law imposed upon, him, viz.,, ordinary care for the intestate’s protection. And in this connection it appeared that the elevator and all the appliances used in connection therewith was installed by a reputable dealer; that there had been provided all of the means then known for the prevention of accidents similar to or caused by the one that here occurred. To that end there had been provided the automatic stop and the slack cable device, either one of . which, was sufficient in and of itself, in case the operator- was remiss in his duty, to cut off the power to stop the car. The evidence offered on the part of the plaintiff,, as well .as that offered on the part of the defendant, established beyond con*373tradiction that the machinery used for operating the elevator was in perfect order at the time the accident occurred; that the operator had performed his duty ; that each of the devices referred to had played the part designed for it; that notwithstanding these facts the power had continued to work after the car had reached the bottom of the shaft, and by reason thereof the counterbalance weights were forced from the frame in which they were placed, causing the injury complained of. The continuance of the power by which the drum was operated under such circumstances none of the witnesses were able to explain. But the defendant established not only by the cross-examination of the experts offered on the part of the plaintiff, but also by its own witnesses, the fact that the machinery was in perfect order ; that nothing was broken, out of repair, or that its servant had failed- to perform the duty assigned to him, and the plaintiff’s witness Thorpe testified upon cross-examinatian that he had never known nor heard of an accident of this kind; that he did not know and was then unable testate how any precaution could have been taken in the shape of improvements to the machinery which would have prevented it. In addition to this it appeared that frequent inspections had been provided for not only by the dealers who originally installed the elevator, but also by two different insurance companies and by the authorities of the city and that an inspection was made by one of them on the very day and only a few hours before the accident occurred, the result of which was to the effect that the elevator, including the appliances used to operate it, was in good order.
Under such circumstances, how could the trial court do otherwise, if defendant’s duty was to be measured by ordinary care, than set aside the verdict and special findings of the jury and dismiss the complaint ? There was no proof, either actual or constructive, of any defect in the machinery or of a threatened or apprehended danger by reason of its operation. It is true there was some proof to the effect of an occasional bumping of the car upon the springs, but in this connection it appeared* and the fact was not contradicted, that this was not an uncommon thing, where an elevator was operated as this one was, nor was there any proof that it was an indication of danger or that the machinery was not properly adjusted. One of plaintiff’s witnesses testified that the bumping was due to *374the setting of' the automatic stop, but this manifestly could not be changed at every trip which the car made, nor was there any satisfactory proof that there was any bumping intermediate the last setting of the automatic stop and the accident, and if there had been it would not have established liability on the part of the defendant, because, as already said, it was hot an uncommon thing, and, so far as appears, no accident had ever occurred by reason of it (McGrell v. Buffalo Office Bldg. Co., 153 N. Y. 265; Burke v. Witherbee, 98 id. 562), nor was there any proof which would have justified a finding that the accident was due to the oiling of the brake band.
The defendant, under the rule laid down by the Court of Appeals, was bound to exercise such a degree of car as a man of ordinary prudence would have exercised under similar circumstances. The plaintiff, before she could recover, was bound to show that the intestate’s death was due to and resulted from some neglect on the part of the defendant; in other words, that the defendant failed to exercise ordinary care for the protection of her intestate. This she failed to do. Upon the facts developed upon the trial a man of ordinary prudence could not have foreseen that injury was liable to be sustained as it was here. It must, therefore, be held, in view of the care used by the defendant in the selection, inspection and maintenance of the elevator, under the rule laid down by the Court of Appeals, that he did all that an ordinary man could be required to-do under the same conditions and circumstances.
The judgment appealed from, therefore, must be affirmed, with costs. '
Van Brunt, P. J., and Ingraham, J., concurred; O’Brien and Hatch, JJ., dissented.