Cohen v. Farmers' Loan & Trust Co.

Lehman, J. (concurring).

. I have concurred on the last ground only and cannot concur on the first ground for the following reasons:

The measure of care required by the owner of a building in regard to persons using the elevators upon the owner’s implied invitation is “ reasonable care in the character of the appliance they provide and in its maintenance and operation.” Griffen v. Manice, 166 N. Y. 188, 199. The phrase " res ipsa loquitur ” is “ merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as to the cause of the accident.” Id. 196.

The question presented to us is, as stated by Mr. Justice Delany, whether the explanation provided by the defendant is sufficient to overcome the inference of negligence created by the circumstances attendant upon the accident; that is, has the defendant shown that it has used due care in providing, maintaining and operating the elevator? The defendant gave little evidence as to the appliance provided or as to its operation. Conceding, however, that the evidence was sufficient to show that the elevator was a proper appliance and was operated without negligence, it still must rebut the inference that it arose from a defect that should have been discovered by proper inspection. In other words, if the doctrine of res ipsa loquitur has been properly applied, it was fairly inferable that the accident must have occurred from one of three causes, and it is quite immaterial which of these causes actually produced the accident; and, though we concede that the defendant’s testimony shows that two of the *552possible causes of tibe accident did not exist in the case, it has not rebutted the inference of negligence but has merely made the inference of negligence more narrow. To rebut this remaining inference, the defendant must show that the defect could not be discovered by reasonable inspection. It has shown only that competent men have inspected the elevator and found it safe, but has in no way shown that these competent men were not negligent in their inspection. The ■appellant owed it to the respondent “ to exercise at least ordinary care and prudence in the-care and management of the elevator and the inspection thereof. A personal duty cannot be delegated to another so as to relieve the person bound -to perform the duty from liability for its non-performance ” (Stott v. Churchill, 15 Misc. Rep. 80; affd., 157 N. Y. 692), and for this reason it was held in that case that there was no error in refusing to charge: ‘ If the jury find that the elevator and its machinery were built by reputable manufacturers and that the defendants had it regularly inspected by experts in that business, and promptly executed the repairs and changes suggested by them, they performed their duty and are not liable for an injury caused by the breaking of the machinery.’ However correct an exposition of the law this might have been had the plaintiff been a servant seeking to recover from the master and the negligence of a competent fellow-servant, it was inapplicable to the case on trial.” Stott v. Churchill, supra.

■Since an owner of a building cannot delegate his duty of inspection of an elevator to an expert in that business, the proof that - an expert has examined it in nowise 'rebuts the presumption of negligence raised by the circumstances attendant on the accident. To rebut this presumption he must show either the. actual cause of the accident, so that the trial justice or jury can determine whether or not such cause could be discovered by proper inspection, or he must show that the inspection made by the expert was so careful that no defect discoverable by inspection could be overlooked.

The appellant relies upon the case of Young v. Mason Stable Co., 193 N. Y. 188, where evidence of an examination by an expert was held sufficient to rebut a possible pre*553sumption, caused by the fall of a freight elevator operated by a servant who was injured by the fall, that the master had failed in the duty imposed upon him 'by law “ to provide for an adequate inspection thereof.” That case, however, proceeded upon the theory that the master in relation to a servant was bound only to “ provide ” adequate inspection, and that this duty was met by putting the inspection in the hands of an expert; but it distinguishes the case from one where the relationship of the parties imposed a personal duty upon the owner to use due care in the inspection of the elevator. It cites as authority for the distinction the case of Stott v. Churchill, supra, and we must, therefore, regard that case as a correct exposition of the law.

I believe for these reasons that the judgments should be reversed only on the ground that a question was excluded which, if 'answered, might have shown the actual cause of the accident.

Judgments reversed.