(dissenting):
This action, which is to recover for the death of the plaintiff’s husband, who ivas killed by the fall of elevator weights in defendant’s building, 55 William street, in the city of Hew York, was before this court on appeal from a judgment in plaintiff’s, favor (47 App. Div. 70) and before the Court of Appeals, wdiere the judgment of affirmance by this court was reversed (166 N. Y. 188), on the ground that the trial court erred in charging that the defendant *375was required to use the utmost care and diligence and is liable for the slightest neglect which foresight might have guarded against, and it was held that he was required to use only reasonable care. The Court of Appeals held, further, that upon the facts herein appearing the doctrine of res ipso loquitur applied, and that the covenant in the lease to the corporation of which the deceased was secretary, releasing the owner from liability, does not release him from responsibility, since the right to use the elevator was based on the general invitation to do so.
On the new trial the defendant endeavored to show that no reasonable care could have prevented the accident and that there was no assignable cause for it and that it was shrouded in mystery. At the close of the case a motion to dismiss the complaint was made, as well as one to direct a verdict for the defendant, and the court reserved decision until after the verdict of the jury. The jury were then charged, and it appears that they made the following answers to questions submitted to them :
“ (1) Do you find from the evidence that the dropping of the weight on Griffen came from the impact of the lower weights upon the upper ones ? A. Yes.
“ (2) Do you find from the evidence that the cause of such impact on the occasion of the accident can be discovered by human intelligence? A. Yes.
“ (3) Do you find from the evidence that the bumping caused such impact? A. Yes, partly.
“ (4) Do you find from the evidence that an unexplained continuance of the electric power after the car would have stopped but for such continuance caused such impact ? A. Ho.
“(5) Could such impact have been foreseen in the way it occurred by the exercise of proper intelligence? A. Yes.
“ (6) Did any omission of proper care in the descent of the elevator cause the injury to Griffen? A. Yes.
“(7) Did the negligence of the defendant cause the death of Griffen? A. Yes.
“ (8) Did any negligence of Griffen contribute to his injury ? A. Ho.”
The jury gave further a verdict of $7,500 for plaintiff.
Thereafter, decision of the court upon the motions having been *376reserved, the court rendered its decision that the-findings of the jury, except the first, with' the general verdict, should be set aside, the-complaint dismissed and verdict directed for the defendant. From judgment so entered the plaintiff appeals. -
The manner in' which the questions are presented on this appeal is somewhat unusual, but the final ruling of the court seems to have been on the motion to dismiss the complaint after both sides had - rested, rather than on the motion to set aside the verdict on the grounds stated in section 999 of the Code of Civil Procedure. The plaintiff’s rights, therefore, are to be considered, bearing in mind the rule that if there is-evidence sufficient to support- the inferenees of defendant’s negligence and the pláintiff’s freedom from contributory negligence, it is the province of the jury, and not of the court, to draw them. (McDonald v. Met. St. Ry. Co., 167 N. Y. 66.) .
• The law of this case being that the defendant was'required to-use only reasonable care, the facts must be examined to determine whether upon this issue there was sufficient evidence to go to the jury.- In "defining, however, .what is reasonable care, Judge Cum lex, writing for the majority in the Court of Appeals, said (166 N. Y. 188), “ the care should be commensurate with the danger.”
There being no suggestion that the plaintiff was guilty of contributory negligence, the single question presented is, would the evidence warrant an inference by the jury that the defendant was guilty of negligence % The plaintiff made out & prima facie case by showing 'the nature and attending circumstances of the accident which justified the application of the doctrine res ipso loquitur.. To meet this prima facie case the defendant sought, by cross-examination of plaintiff’s and by his own. witnesses, to show that no explanation could be given as to what was the cause of the accident, and that, consequently, it did not appear what care, if any, could have guarded against the fall of the weights.
As to the maintenance and operation of the elevator, it appeared that in the basement there was a drum moved by electricity supplied from an outside source, to which was attached .a rope winding-about it, which extended to the top of the shaft and over a wheel or pulley down to the top of the car*, the .revolution of the drum thus raising the car. Attached also to this drum was another rope *377which moved in the opposite direction from the first rope and passed to the top of the shaft and over a wheel or pulley down to a set of lower weights, which ran up and down between vertical bars, moving up as-the elevator descended, and viceversa, and serving to counterbalance the drum and steady the motion. There was another rope attached to the top of the car, which ran up the shaft and over a wheel or pulley, 'down to what are called the upper weights, which also moved' between vertical parallel guides and were adjusted so as to go up and down and always three feet above the lower weights. These upper weights counterbalanced the car and went up as the elevator descended. It was not intended that they should come nearer than within two feet of the top of the shaft, where there -were horizontal permanent beams.
On the day of the accident, after the car fell or descended rapidly from the floor above to the landing floor, the lower weights were found pressing against the upper weights, which in turn were pressing against the horizontal beams, and thus had forced apart the vertical bars or guides so as to permit weights to fall out into the shaft and upon the elevator car below, causing the death of plaintiff’s intestate. It was testified that, although the momentum of the weights in their upward course might when the car stopped cause, the weights to continue on less than a foot, it would not cause the lower weights to go upward at least five feet, pushing the upper weights upward against the horizontal beams. Hence it appears that the only other possible force must have been force applied through the rope attached to the lower weights, which rope passed down to the drum which was moved by electricity. It was testified that the drum, after the power' had been shut off, might by momentum revolve perhaps half or a quarter of a revolution if the brake was in proper condition, and this might raise the car a foot. The weights, however, were raised more than a foot and to the extent at least of five feet; so that it appears that they were raised either because the power was not shut off or because the brake was out of order.- Three ways were provided for shutting off the power and applying the brake, by the operator in the car, by the automatic stop or clutch device, and by the slack cable device. . The two latter were designed to stop the car should it fall or the cables become slack. It was testified that if the car came to the bottom and the *378operator failed to shut off the power and the automatic stop failed to work, then the slack cable device would shut off the power and apply the brake; and it is evident that if the power was still on, the car being at the bottom, the rope above the car would become slack while the lower weights were being raised. Under such conditions, it was testified, the weights might rise about three feet six inches. Even this, however, does not account for the five feet covered by the lower weights; and, therefore, it follows either that the slack cable device was out of order or wrongly adjusted, or else that the power was continued in spite of it.
’ It is conceded that this elevator, which was of the Otis make, was a first class machine, and it is not disputed that the various parts were properly and skillfully made. But in all the testimony sought to be elicited by the defendant and offered as to the different devices and safeguards, the matter of adjustment was lightly touched . upon. It appears that the brake should be rightly adjusted in order to work in time, and that the automatic stop depended for its efficiency upon adjustment, and that the slack cable device required adjustment and was dependent upon the adjustment of the brake. In this connection it was brought out that for some time previous to the accident, the elevator had been heard to bum]) when it reached the first floor, and it was testified that on one occasion it had bumped so hard that an electric light bulb was shattered. It thus appears that for a considerable period of time prior to the' accident in question, the elevator had at intervals come to the bottom of the shaft with a bump similar to, but not as violent as, that which preceded the accident.
It was testified that unless the machine was out of order it was not possible for it to bump; and. again,. “ It is not possible for a car to bump hard if the machinery is properly adjusted.” At the time of the accident the elevator bumped and rebounded eighteen inches. As to the automatic stop it was testified, “ It is supposed to operate of itself when the elevator gets to a certain point at the bottom of the shaft. If it. is properly adjusted it does.” Here it did not operate, as evidenced by the fact that the power must have continued to lift the weights which were lifted; and a fair inference seems to be that the stop was not properly adjusted, and this independently of the bumping. And it was testified that if there was a *379heavier weight than usual in the car, it would be apt to bump if the brake was out of adjustment. The car did bump, and, hence, it would seem to be demonstrated that the brake was out of adjustment, and had been for some time.
Although, therefore, the defendant showed that he had furnished a modern and scientifically constructed machine, the evidence would justify the inference that at the time of the accident it was not. properly adjusted, and had not been for a considerable period prior thereto.
To meet this evidence the defendant showed that it was the duty of the Otis elevator people, who constructed the elevator, to adjust it when it was put in, and thereafter to inspect it; and that the Employers’ Liability Corporation regularly inspected it and had done so on November 25,1898, the accident occurring on December 5, 1898, and their report was that the elevator .was found to be in good condition. It was this evidence which, no doubt, had a controlling influence upon the learned trial judge; and it may be said to be the dividing line at which different minds considering the testimony will conclude in favor of or against the view that the defendant did not use reasonable care. But it is because different inferences can be drawn that we think the question of the defendant’s negligence should have been submitted-to the jury.
Upon this subject, bearing in mind the role “that the care should be commensurate with the danger,” we think that where an owner of an elevator has notice of its defective condition (and here, not only had the bumping been heard all, over the building, but the engineer who represented the defendant in the building testified that he knew of it) his duty is not discharged in providing by contract for the mere inspection of the elevator from time to time by a liability company or the persons who constructed it, without calling the attention of the inspectors to the particular defects of which he has knowledge. The dropping of. the car below the lower floor and into the bottom of the shaft, causing the bumping to which we have already referred, was sufficient to apprise those having charge of the elevator that something was wrong with the machinery, and we think, in that connection, it was incumbent upon the defendant, in the discharge of his duty of exercising reasonable care to protect those whom he permitted to use the elevator, to have *380remedied the defect 'which he knew'or should have known existed, or at least to have called it to the special attention of those who were experts in the elevator business. Although it was shown that the elevator was regularly inspected at stated - times under some general arrangement, it does not appear that the defendant gave to the inspectors any notice of the bumping which was going on, or in any way sought to have it corrected.
U pan .the proof, therefore, as it stood at the end of the case, we think that the course pursued by the learned trial judge in submitting the question of the defendant’s negligence to the jury .was right; and that after the verdict in plaintiff’s favor, his special ruling dismissing the complaint — because as we take it that is what was finally done — was erroneous; and that this error required a reversal of the judgment appealed from.
The judgment should be reversed and judgment ordered-for -the plaintiff on the verdict.
Hatch, J., concurred.
Judgment affirmed, with costs.