Coogan v. Aeolian Co.

*153 Wheeler, J. There are several grounds of negligence alleged. On only one of these can the verdict of the jury be supported, viz. that the defendant negligently and without warning to the intestate, Coogan, suddenly lowered the elevator at great speed, so that the intestate, passing through the elevator well in the exercise of due care and in the performance of his duty, had neither notice to get from under the descending elevator, nor opportunity to escape it. The defendant habitually piled rolls of paper around the elevator, so that the intestate was compelled to pass through the elevator well in the ordinary course of his employment. The defendant knew that if the elevator was overloaded it was liable, after being started, to fall suddenly. It also knew that the place it provided for the work of the intestate in the passage through the elevator well was rendered unsafe from the liability of the elevator to fall after being started. Ordinary care in the conduct of its business demanded that warning should be given to those in proximity to the elevator upon the floor beneath when the elevator was about to descend. So far as appears, the defendant had neither adopted such a rule or regulation, nor instructed its employees operating the elevator to give warning to those beneath when the elevator was about to descend. The master owes to his servant the duty of adopting rules, regulations, and precautions for the conduct of his business which are reasonably necessary to make the place in which the servant is required to work reasonably safe. If the master requires his servant to work in a dangerous place, he must adopt all reasonable and practicable means to make the place safe for the work. Northern Pacific R. Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. Rep. 843; Doing v. New York, O. & W. Ry. Co., 151 N. Y.579, 583, 45 N. E. 1028; Ford v. Lake Shore & M. S. Ry. Co., 124 N. Y. 493, 498, 26 N. E. 1101; Pio *154 neer Fireproof Construction Co. v. Hansen, 69 Ill. App. 659, 664; Gerrish v. New Haven Ice Co., 63 Conn. 9, 16, 27 Atl. 235; Labatt on Master & Servant (2d Ed.) §§ 1114, 1115, 1504. And to fulfil his duty and keep the place reasonably safe, he must exercise reasonable supervision to see that his business is being conducted in pursuance of such rules and regulations. Whittaker v. Delaware & H. C. Co., 126 N. Y. 544, 549, 27 N. E. 1042. So far as appears, the defendant had made no rule or regulation providing for such warning, and had instructed none of its employees to give such warning. The defendant thus violated its primary duty of keeping its place of work reasonably safe for the intestate to' work in. Its duty in this particular arises out of the possession, use and control of the premises where it put the intestate at work. The defendant insists that the intestate assumed this risk and voluntarily encountered it. The risk arose out of the master’s negligence, and is admittedly an extraordinary one. It is an affirmative defense. The defendant failed to plead it, and hence cannot now raise it. Worden v. Gore-Meenan Co., 83 Conn. 642, 647, 78 Atl. 422. Moreover, the evidence would not justify such a finding. The defendant further claims that the elevator was operated by a fellow-servant of the intestate. The court submitted this issue as one of fact to the jury; and it must, under the charge, have found that the operator of the elevator was not a fellow-servant of the intestate. We think the evidence was so clear as to have required the court to have instructed the jury that all employees upon the elevator were fellow-servants of the intestate. Since, however, the jury must have found that the place was unsafe, and that the defendant’s failure to give the intestate warning of the descent of the elevator was a proximate canse of the accident, it necessarily followed *155 that the defendant had failed in a primary obligation which it owed the intestate. The negligence of a fellow-servant will not relieve the master of liability for an injury caused in part by the master’s breach of duty. Messinger v. New York, N. H. & H. R. Co., 85 Conn. 467, 476, 83 Atl. 681; Sprague v. New York & N. E. R. Co., 68 Conn. 345, 353, 36 Atl. 791; Wilson v. Willimantic Linen Co., 50 Conn. 433, 466. The issue of the contributory negligence of the intestate was properly left to the jury. There was no error in the refusal of the trial judge to set aside the verdict. The charge is complained of in several particulars:— 1. The court instructed the jury that the test for determining who are fellow-servants was “whether the duty violated is one resting upon the master or solely upon the offending servant.” This statement follows a correct statement of who, under the law, are fellow-servants, and what consequences follow an accident due to their agency. In this so-called test the court was obviously referring to the test of liability of the master for an injury claimed to have been caused by a fellow-servant, and the jury could not have misunderstood the statement of the court. The refusal of the court to charge that the employees on the elevator were fellow-servants of the intestate was of no consequence, since, as we have already pointed out, the jury must have found the accident resulted from the defendant’s breach of its primary duty, against which the negligence of a fellow-servant cannot avail. . 2. Error is predicated upon the charge in relation to the contributory negligence of Coogan, viz: “For the rule is that if his injuries were caused substantially and proximately by his own negligence, his administratrix could not recover, and in that case it would be immaterial and of no importance whether the defendants were *156 negligent or not.” The defendant contends that mere fault of a plaintiff will preclude his recovery, and therefore the court, in limiting the negligence of the intestate which would preclude recovery to that which substantially and proximately caused the injury, relieved the plaintiff of a part of her burden. This charge is another form of statement of our rule that a plaintiff cannot recover if his own negligence essentially or materially contributes to his injuries. Mere fault of one will not preclude recovery, but fault which amounts to a want of ordinary care. The frequency of this claim in negligence actions is singular in view of our long-established rule. Beers v. Housatonic R. Co., 19 Conn. 566, 572; Daley v. Norwich & W. R. Co., 26 Conn. 591, 597; Clarke v. Connecticut Co., 83 Conn. 219, 223, 76 Atl. 523. Equally settled is our rule that “negligence is only deemed contributory when it is a proximate cause of the injury.” Smith v. Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888; Williams v. Clinton, 28 Conn. 264, 267; Isbell v. New York & N. H. R. Co., 27 Conn. 393, 407. 3. We think the court properly presented the duty of the defendant, in requiring it to give notice and warning to its employees if the elevator was liable to drop rapidly with a considerable load, and to enforce reasonable rules for the protection of employees, required by their work to go under the elevator, from the elevator descending suddenly and without warning to them; and in instructing the jury that if they found the elevator was liable to run down suddenly when it carried a considerable load, and no warning was given the intestate that the elevator was about to descend, and he was obliged, in doing his work, to go under it, and as a consequence he was struck by it, they should find the defendant negligent. In the conditions the court treated of we have a place in which the servant must work, *157 made unsafe by the liability of the elevator to drop, and no rule to prevent its use without warning, and no warning given the servant. These conditions make a clear case of negligence, and fully justify the charge. We need not repeat our earlier discussion of this point. 4. The charge in relation to the damages is complained of because the court failed to state to the jury the maximum of recovery under the statute. The recovery was within the maximum, and no request to charge was made upon this subject, and therefore there is no basis for this assignment of error. Other portions of the charge complained of are either included in points already treated of, or else are, in our opinion, unimportant. There is no error. In this opinion the other judges concurred.