I dissent from the conclusion of the majority of the court, that the evidence is insufficient to justify a finding by the jury of negligence on the part of the defendant.
There was no substantial dispute upon the trial as to the manner in which the accident occurred. The freight elevator, which was operated by hand power, and upon which the plaintiff had just placed a carriage which he was making firm upon the platform, •suddenly'fell and it was found that the single iron clamp, designed to fasten the end of the cable about ten inches above the eyebolt upon the elevator through which the cable passed, had come off so that the end of the cable slipped through the eyebolt, permitting the elevator to fall, and leaving the cable dangling in the shaft. It was admitted by the defendant’s witness that most of the strain came upon this single clamp which it was testified measured four inches by an inch and a quarter and which was held in place by bolts. This clamp the defendant’s expert testified should, if properly put on, sustain a weight of at least 4,000 pounds, or about twice the actual weight expected, and the carriage which fell with the elevator i,t was testified weighed about 1,700 pounds, being one of the heaviest that the defendant had. The defendant testified that he had ordered James Murtaugh, who was in the business of furnishing and repairing dumbwaiters and hand elevators, to make a *312complete inspection of the elevator and attend' to any repairs that were necessary, and that in compliance with this order repairs were made in September, less than two months before the accident. The inspection was done by one Hansen, who testified that he found several defects, including a defective bolt in the clamp, and he supplied a new one, and that he made other repairs, including a pin under the flywheel shaft, sheet iron on the drum, a piece of slide which had been worn out, a new check rope, bolts in the frame and an extra counter balance weight and then ran the elevator and found it all right. He further testified that his only education was as a mechanic, at which he earned three dollars and fifty cents a day, and that he had never tested a cable nor the strength of iron nor any metal in his life, and he had not the slightest idea how much strain came on the clamp and never tried to find out, and that one clamp ought to hold as much as the cable would stand if properly put on, although he did not mean to say that one clamp holds-as much of a strain as two .clamps, and on that kind of elevator it was customary to use one clamp;
For the plaintiff it was testified by a mechanical engineer that-the usual and customary method of fastening elevators such as the one described was to pass the cable through the eyebolt twice and then to put on a clamp just above the eyebolt and a second clamp six or seven inches further up, and that if but one clamp is used with a loop through the eyebolt the strain comes directly on the-clamp; and that where two are used the strain is divided and the strength is twice as great, and that a single four-inch clamp as described was unsafe to- sustain a weight over 2,000 pounds, and might not sustain that weight.
, The question presented was whether or not a proper inspection was made, and in this connection whether the defendant used care in the selection of an inspector and whether the inspector in .fact adequately performed his -duties.
Assuming that in hiring a man in the dumbwaiter and hand- elevator business and in permitting the inspection to be actually made by a mechanic who was unfamiliar with testing the strength of materials, the defendant was not negligent, the defendant, as we understand the rule, cannot escape responsibility if that inspection was-inadequately made. As to employees, it has been repeatedly held *313that an employer must provide a safe and proper place in which to work, and in the case at bar, although it was testified that employees, were forbidden to ride upon the elevator, it was not seriously disputed that in the course of their work, as in the present instance, it was necessary for them' to go upon it. In Egan v. D. D., E. B. & B. R. R. Co. (12 App. Div. 556) the court held: “ This was a personal duty (the inspection of a boiler) imposed upon the defendant. It was not a sufficient performance of this duty that the defendant had appointed a competent person to inspect, but the inspection must be properly done, and if it was not properly done the defendant was liable however competent the person selected as an inspector might be. * * * To excuse him from liability the boiler must have been carefully inspected by a competent inspector." And in Scandell v. Columbia Construction Co. (50 App. Div. 512) in discussing the master’s duty of supplying safe and suitable tools, it was said: “ This is a primary obligation which cannot be delegated by the master so as to shield him from responsibility.” And in the recent case of McGuire v. Bell Tel. Co. (167 N. Y. 214) the court says: “ The duty of the defendant was just as great to safely maintain as to safely construct and that duty cannot be delegated so as to-exempt the master from liability.” The rule is thus stated in Byrne v. Eastmans Co. of N. Y. (163 N. Y. 461): “ Reasonable care involves proper inspection and negligence in respect of it, in such cases as this, is the negligence of the master and none the less so-when the inspection is committed to a servant.” So too, in Sarno v. Atlantic Stevedoring Co. (66 App. Div. 611), it is said: “ The duty of furnishing proper appliances for the use of the servant and of exercising reasonable care and prudence to protect the servant from avoidable injury is a duty of the master and cannot be delegated.” See, also, Jarvis v. Northern N. Y. Marble Co. (55 App. Div. 275), wherein it was said : “ The defendant’s ignorance of the defective condition of the interior of the mast does not relieve him* from liability if, by the exercise of proper inspection, it could have been discovered ; ” and Rowley v. American Ill. Co. (83 id. 613), wherein it was said: “It was for the jury to decide from the facts appearing in this case whether the defendant made a reasonable inspection of *314this pole and it may not relieve itself from that burden by showing that it made the ordinary inspection.”
The simple character of the mechanical arrangement by which the elevator here was suspended, when supplemented by the information as to the weight• which sucha clamp if properly adjusted could maintain and the relative strength of single and double clamps and the testimony of the inspector as to the repairs he made, made it peculiarly a question for 'the jury to determine whether there was negligence in the construction and on the part of the inspector in inspecting and repairing the elevator. That his attention was called to the clamp appears from the fact that he found one bolt defective which he repaired; and the jury could properly conclude whether he should have supplied another clamp or made other repairs to secure safety.
With respect to the exception referred to as an additional ground for reversing the judgment, the record shows that the exception was to the ruling of the court admitting, over defendant’s objection, the question whether the elevator was in the same condition, and the answer to that question was,“ It was not,” This answer Avas in no way harmful to the defendant; and although it appears that the witness thereafter testified that the steel cable is now fastened with two clamps, no further objection was made or exception taken, so far as appears, to this testimony. The exception, therefore, was not of such a character as to require a reversal; and, furthermore, it may be said that as the evidence was very clear and ample as to what the condition was at the time of the accident, and was such as Would support a finding that the elevator' was defective and the inspection was negligently performed, it was competent for the jury to return a verdict holding the defendant liable for its failure to supply a safe place for the plaintiff to work.
I dissent, therefore, and think that the judgment should be affirmed, with costs..
Judgment and order reversed, new trial granted, costs to appellant to abide event.
Sic.