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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 521 At the close of the plaintiff's evidence the defendant moved for a nonsuit upon the several grounds of contributory negligence on plaintiff's part, the combination of such negligence and that of a co-servant in producing the injury, and the absence of any evidence of negligence on the part of the defendant. This motion was denied, the court thereby assuming that the evidence was then sufficient to carry the case to the jury. The defendant then gave evidence tending to controvert and impeach the testimony produced by *Page 523 the plaintiff, but we think failed to furnish such a preponderance as rendered the questions arising thereon matters of law. At the conclusion of the evidence the defendant renewed his motion to nonsuit, and to dismiss the case on the whole evidence, and the plaintiff asked to go to the jury upon the questions of fact in the case. The court, without stating the reasons therefor, granted the defendant's motion and denied that of plaintiff's. To both of these rulings the plaintiff excepted. Upon appeal to the General Term the judgment of the trial court was affirmed.
We are unable to see upon what ground these various decisions can be reconciled or supported. Upon the trial, and while the plaintiff was engaged in giving evidence of experts as to the proper construction of elevators with respect to their safety, the defendant's counsel interrupted its progress by conceding that the elevator in question was not constructed as one intended to carry passengers or people should be. This concession necessarily forecloses any discussion as to the negligence of the defendant in omitting to perform the duty of furnishing safe and adequate machinery for the performance of the work in question, and narrowed the issues to be tried to those of contributory negligence. Whether the defendant's employes were authorized or permitted to make use of the elevator in prosecuting their work, and whether the injury occurred in consequence of the use made of it by the plaintiff in riding to the upper floor. The evidence clearly required the submission of these questions to the jury. It showed that the injuries occurred in consequence of the fall of the elevator used in defendant's warehouse at Garden City in the prosecution of work which the plaintiff was employed to perform. This elevator was used in hoisting grain from the lower to the upper floors of the warehouse, with the view of their having it there distributed either in a fanning-mill to be cleaned or into bins for storage. The usual method of carrying on this business was for the servant charged with its performance to load the grain into a van capable of holding some thirty or forty bushels, and when loaded to push it on to the elevator and cause the engineer *Page 524 to apply the power necessary to raise it to the floor intended, and when that was reached to attend there to its distribution. On arriving at that floor certain marks upon the cable running into the engine room indicated to the engineer that the elevator had reached its place of destination. That point on the occasion in question was a platform above the second floor communicating with tramways upon which the vans were to carry the grain to the desired place. When the elevator arrived at this platform six inches space alone interposed between the top of the elevator and the pulley beam through which the cable ran. There was evidence showing that it was the custom of the servant having charge of the van to ride in the elevator to the place of destination and then push the van on to the tramways and along them to the place of delivery.
Upon the occasion in question the plaintiff ascended with the elevator until it stopped about an inch below the level of the intended platform; he then stepped from the elevator upon the platform and attempted to push the van off on to the tramways. While thus engaged the engineer suddenly applied the power and caused the elevator to ascend until its top struck the pulley beam, and being thus prevented from going higher, the cable was broken and the elevator with its load fell a distance of some thirty or forty feet, to the bottom of its well, carrying the plaintiff with it and causing serious injuries to him.
If the question as to the sufficiency of the evidence to carry the question of the defendant's negligence to the jury was now open for consideration we should entertain no doubt of the plaintiff's right to have it determined by them. The proof upon the trial showed that no appliance or safety guard, such as is usual and customary, even on freight elevators, to arrest their fall in case of a break in the cable, was provided by its constructors, and that its motion was regulated entirely by an engineer who could have no ocular observation of its position. It is apparent that the space between the pulley beam and the elevator when it arrived at the upper platform left but little leeway to guard against the possible inattention or error of the *Page 525 engineer, or his inability to control with mathematical precision the motion of the elevator and arrest its ascent in time to avoid a collision between the car and the beam suspending the cable. The danger of so constructing an elevator as to require unremitted attention and faultless accuracy on the part of a fallible agency in the application of power thereto in order to avoid serious injury to persons transported on it is so obvious that it needs neither proof nor argument to establish its existence. The evidence did show that the elevator and pulley beam had collided before, and the marks of their contact were apparent on the beam, and the defendant's superintendent testified "that the danger was so apparent it was pointed out by me to each one of them, and I indicated where the rope would be broken, exactly where it was." "The point of difficulty was the over-winding of the rope by the extra turning of the engine and striking on the top, and sooner or later an accident would occur of that nature."
Upon the trial the defendant did not even attempt to establish the safety of the elevator's construction but directed her evidence to those facts tending to show that the workmen were not authorized to ride on it while it was transporting grain, and her superintendent testified that he had previously notified the plaintiff and another servant of the danger to be apprehended by those riding on it, and forbade them from doing so. On the other hand testimony was given showing that the superintendent had himself ridden on it in the view of the workmen; that he had directed the servants employed in moving grain to ride thereon while performing their work, and it was expressly testified by each of the employes called who had been engaged in working with the elevator that he had not been forbidden to ride on it or notified that it was dangerous to do so. It was in proof that visitors had occasionally been taken up in the elevator, and the defendant's superintendent testified that he had told the employes that it was safe to come down in it, or ride to the second floor, but not to the platform above. No written or printed notice had ever been given by the defendant that the elevator was unsafe or not intended *Page 526 for the use of the employes in performing their work, and it was in proof that it was constantly used by them with the knowledge of defendant's superintendent.
A serious question of fact thus appears to have been presented by the evidence as to the use intended to be made of the elevator by the defendant. It was quite competent for the jury to find, upon the evidence, that the servants of the defendant were induced and encouraged to ride on it by the expectation and consent of the defendant in the prosecution of the work for which they were employed.
It was conceded by the General Term that the elevator was defective and unsafe for passengers, and that it was the duty of the master to use reasonable care and caution in the selection of implements, tools and machinery for the use of her servants in their employment; but the judgment was affirmed upon the ground that the accident occurred through the carelessness of a co-servant which was there held to be one of the risks of service assumed by the plaintiff in entering the employment.
We do not concur in this opinion. It has recently been several times held in this court that co-operation of the negligence of the master and a co-servant in the production of an injury to an employe, does not excuse the master from liability therefor. (Fuller v. Jewett, 80 N.Y. 46; Cone v. D.L. W.R.R. Co., 81 id. 209; Ellis v. N.Y., L.E. W.R.R. Co., 95 id. 546.) That a fellow servant may, by care and caution, operate a defective and dangerous machine so as not to produce an injury to others, does not exempt the master from his liability for an omission to perform the duty which the law imposes upon him of exercising reasonable care and prudence in furnishing safe and suitable appliances for the use of his servants. The rule which excuses the master under such circumstances presupposes that he has performed the obligations which the law imposes upon him, and that the injury occurs solely through the negligence of the co-employe. (Pantzar v. Tilly Foster Mining Co., 99 N.Y. 368. )
The testimony of the plaintiff shows that he had no knowledge of the defects in the machinery in question, and could not, *Page 527 therefore, be chargeable with the responsibility of knowingly using such machinery. Even if we assume that the elevator was not designed for the use of the workmen in riding upon it in the prosecution of their work, it does not follow, from the evidence as a matter of law, that the injury in question was produced by the act of riding in it. The testimony is to the effect that the plaintiff had arrived at the upper platform and had stepped out and safely landed thereon before the accident, and was engaged in pushing the van on to the platform when it occurred. This work it was obviously his duty to do, however he had arrived at the place of its performance, and it was while he was thus engaged that the accident occurred. It was quite competent for the jury to have found, that even if he had gone to the upper platform by the stairs or otherwise, that the injury still would have been produced in the manner shown by the evidence.
In every view we have been able to take of the case questions of fact are presented requiring its submission to the jury.
The judgments of the courts below should be reversed, and a new trial ordered, with costs to abide the event.
All concur.
Judgments reversed.