The plaintiff by this action seeks to recover damages for injuries alleged to have been • received on account of the negligent manner in which the defendant maintained an elevator; The' defendant is a corporation engaged in the livery stable business at 17 East Twenty-eighth street in the borough, of Manhattan, city of New York. It had been an occupant of these premises about-six months. Plaintiff had been in its employ fof six years as a general utility man and was so employed at the time of the accident. The eleva*307tor consisted of an open platform about six feet wide by fourteen feet long. At the sides and about the center were wooden uprights, with a crossbar connecting them at the top of a sufficient height to permit a carriage to run underneath. It was operated by hand power by means of an endless rope, passing over a wheel at the top of the elevator shaft, then .down through the various floors of the building on the outside of the shaft. The elevator could be operated upon any floor from the outside by pulling the rope in one direction to make it go down and in the opposite direction to cause it to ascend. The elevator itself was hung by means of a wire cable, the upper ends of which were wound around a drum at the top of the shaft, the lower end passed through the eyehole of an iron hanger which was fixed in the center of the crossbars which connected the top of the two uprights. This steel cable passed through the eye of the hanger, was turned back and the end fastened to the main cable again by a single steel clamp. Upon the 7th day of November, 1900, the plaintiff was ordered by his immediate superior to go to the top story and bring down a heavy top carriage called a landau. While engaged in putting the carriage upon the elevator it suddenly and without warning fell to the bottom of the shaft and the plaintiff received very serious injuries. It was conceded upon the trial that the accident was occasioned by the wire cable supporting the elevator pulling through the clamp. When released from the restraining hold of the clamp the cable was drawn through the eyehole of the iron hanger and this condition left the elevator without any support, by reason of which it'féll.
The evidence given upon the trial, we think, was sufficient to authorize the jury to exonerate the plaintiff from any charge of contributory negligence. This branch of the case, therefore, needs no farther discussion.
The serious question arises upon the proof to establish the negligence of the defendant. The court held, and we think correctly, that the obligation resting upon the defendant was to use ordinary care and caution to provide an elevator reasonably safe for the purpose for which it was intended to be used, and that it was required to exercise the same degree of care in maintaining a condition of reasonable safety during the period of its use. In construction of this rule the court charged: “ The duty incumbent on an employer *308■ of furnishing a safe machine for its employees to work with does not ■ require him to furnish the best known appliances.- His duty is discharged when he furnishes an appliance reasonably safe and suitable, such as is ordinarily used in the business, and which is in good repair; and the test by which to determine whether he has performed that duty is not satisfied by the answer to the inquiry whether better appliances might have been obtained, but whether the selection made was reasonably prudent and careful.” The rules of law thus announced, we think, correctly and accurately state the obligation of the defendant. The court further held and charged that the fall of the elevator, standing alone, as an independent fact, did not establish the negli-' gence of defendant, but that when taken with the surrounding circumstances, the jury might find therefrom that the defendant was negligent in the maintenance of the elevator in a manner so insecure that it fell. In this- respect the charge was as favorable to the defendant as it was entitled, perhaps more so. • In application, however, of the proof under these rules of law we think the negligence of the defendant was not established with that strength of evidence which the law requires. It was testified to by the manager of the defendant that in August prior to the accident he employed one Murtaugh to examine this elevator and put it in perfect Order. Murtaugh has since died. He had been in the business of furnishing elevators for a great many years and in his'business constructed dumbwaiters and hand elevators, i. e., elevators whose movements were made and controlled by the hand without other power. This elevator was of that class. . He had also during this period of time repaired and put such elevators in order and employed mechanics for that purpose. The defendant’s manager gave Murtaugh the order to repair in August, but the work of examining and repairing the elevator was not done until the following September and the last work. done upon it was about the ninth day of October, when the mechanic put in a bolt and finally fastened the clamp. He testified : “ When I left this elevator I left it as a good job, one which in my opinion was a finished and complete job. Nothing further remained to be done • to make the elevator perfectly safe.” This witness had been engaged in the construction and repair of elevators of this character for nine years and upwards. There was no attempt made to discredit his skill and fitness to do the work and nothing which-*309appeared detracted from his ability as a competent mechanic to whom it was proper to submit the repair and restoration of this elevator. Nor is there any doubt or discredit cast upon the statement of this witness as to the time when he did this work and the manner in which it was finished. The'dates were accurately fixed by the bill which was rendered and which the defendant paid. Upon undisputed proof, therefore, coming from credible witnesses it appeared that a month prior to this accident the defendant had caused to be employed a competent person to put this elevator in perfect repair; that such person did the work and the defendant paid therefor. What more was required in order to discharge the obligation of reasonable care and how could the defendant have done more to meet such obligation, unless it had a special or continual inspection of the elevator following the time when it was informed that the elevator had been put in perfect order ? Upon this subject the court charged the jury: “Is it fair to say that there was no inspection of the elevator by an engineer or by an expert skilled in exact construction, except in so far as Mr. Hurtan gh, the gentleman applied to to make the repairs, may be deemed to have been an expert % Mr. Murtaugli was a practical man, a practical builder of such elevators, but he was not, so far as otherwise appeal's, a skilled engineer or a person who could in the examination of a thing of that kind point out in a scientific way what was necessary to make them reasonably safe. He may have been able in his experience as a practical man to construct similar elevators. But the fact that there was no inspection by a skilled engineer is a fact to be considered by you upon the question as to whether the defendant did all that it was his duty to do to make the elevator safe and secure.” This charge imposed an obligation upon the defendant beyond what the law required. When it had procured a man who was a practical builder and constructor of these elevators, who made them, and, consequently, must have been entirely familiar with them and their method of operation, it would seem to meet all of the requirements of the rule. The court, however, went further and submitted the question as to whether in addition to this care and caution the defendant ought not to have further procured inspection by a skilled engineer. Such requirement treads closely upon, if it does not embrace, the obligation of *310extraordinary care and that duty is not imposed even as to passenger elevators. (Griffen v. Manice, 166 N. Y. 188, 198.) The obligation is always relative; This-was an elevator of comparatively simple construction. It was not intended to be used for the purpose of carrying passengers or employees. The employees were in fact prohibited from riding upon it. The use to - which it was devoted was the hoisting and lowering of carriages and grain which was done by hand from the outside. Manifestly under such circumstances the doctrine of reasonable care did not require an inspection of the elevator by a skilled engineer in addition to the. inspection already had. No case of which we are aware has extended the doctrine of reasonable care beyond this point, as applied to an elevator of this character. There were no safety clutches upon the elevator, but the proof upon the part of the plaintiff shows that many of these elevators were used without such safety clutches, some had them. Under the rule announced by the court the absence of clutches was hot regarded as constituting an element upon which to predicate negligence. We think, therefore, that upon the undisputed proof the evidence is insufficient to justify a finding that the defendant had not exercised reasonable care, and that whatever presumption arose from the fall of the elevator itself was fully and completely explained, as was the defendant’s attitude thereto. We think, therefore, that the verdict was without sufficient evidence to support it in this respect.
In addition to this a fatal error was committed in' a ruling upon the trial. One Wood was called as a witness, who had been employed about this stable. He testified that on April 8, 1903, he visited the stable with Mr. Girarles E. Southard, the plaintiff’s expert, and examined the elevator and the fastening- of the steel cable. Over objection and exception he was permitted to testify that at that time it was fastened with two clamps, whereas at the time of the accident it had only been fastened with one. * There was no limitation placed upon the force and effect of this testimony. It was received generally in the case. Its manifest tendency was to convey to the minds, of the jury an impression- distinctly prejudicial, that the substitution of two clamps for the one existing at the time of the accident was a recognition upon the part of the defendant that the first construction was defective, and with this impression in *311the mind of the jury it is easily seen that they would readily be influenced to find the defendant guilty of negligence. Negligence, as said by Grover, J., in Dougan v. Champlain Transportation Co. (56 N. Y. 1), is “ to be determined by what was known before and at the time of the accident.” Judge Earl, in considering a similar question, said: “ While such evidence has no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.” (Corcoran v. Village of Peekskill, 108 N. Y. 151.) This rule is too familiar to call for further comment.
It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., and Patterson, J., concurred; O’Brien and McLaughlin, JJ., dissented.