Simmons v. Peters

Adams, J.: Upon a former appeal in this action it was held by the General Term in the fourth department that the evidence • presented questions of fact .respecting the negligence of both parties which should have been submitted .to the jury, and that in taking the case from the jury the trial court committed an error which required a reversal ■of the judgment of nonsuit. (Simmons v. Peters, 85 Hun, 93. See, also, Tousey v. Roberts, 114 N. Y. 312.) The case now comes up for a second review with no material ■change in the facts, nearly all of the evidence presented to the jury upon the last trial having been reg.d from the printed appeal, book. ■ It is apparent, therefore, that the trial court was fully justified in submitting the case to the jury, arid we are óf the opinion that the evidence is amply sufficient to sustain the verdict rendered. It is insisted,- nevertheless, by the learned counsel for the appellant that a new trial should be granted in consequence of the alleged ■erroneous refusal of the trial court to- charge in accordance with certain requests made at the close of the trial. These requests present [253] but one or two questions which have not already been passed upon,, and these, we think, are quite free from embarrassing complications.. It appears that at the time the plaintiff fell into the elevator shaft it was quite dark and that the gas was not lighted. It also appears .that the gas fixtures were furnished by the defendant, and that in the winter time they were usually lighted by one Schindler,, a co-employee of the plaintiff. The learned trial justice submitted to. the jury, as ope of the circumstances which might be considered upon the question of the defendant’s negligence, the failure to have the gas lighted; but at the same time he was very careful to say,, both in the body of his charge, as well as in response to a request of counsel, that the absence of these lights did not necessarily establish negligence. After the jury had been thus instructed, the defendant’s counsel requested the court to charge them that the absence of lights did' not tend to establish negligence upon the part of the defendant, and also that, inasmuch as gas fixtures had been furnished, it was-, the duty of Schindler to light them; his omission to do so was. the negligence of a co-employee, and not that of the master. The court refused to charge in the language of these several requests,, and to such refusal the defendant’s counsel duly excepted. It is made apparent by reading the entire charge of the learned court that the absence of. these lights was referred to in a very casual-manner, and that it was not regarded as anything more than a slight • circumstance to be taken account of by the jury. Still it was a circumstance which they had a right to consider as bearing more or-less directly upon the question of the defendant’s negligence, and-the court was, therefore, justified in refusing to instruct them that it did not tend to establish negligence. As respects the other branch of the question raised by these-requests, .we think there are two complete answers to the defendant’s position. In the first place it does not satisfactorily appear-that an attempt had been made to delegate the duty of lighting the gas to an employee. The most that can be said in support of this proposition is that Schindler usually lighted it in the winter time, and this accident to the plaintiff did not occur until April. But,, even if Schindler was remiss in his duty, this did not exonerate the defendant, for the only object in lighting the gas was to furnish the> [254] employees of the latter with a reasonably safe means of access to the elevator, and this was a duty which she could not delegate to a subordinate. (Pantzar v. The T. F. I. M. Co., 99 N. Y. 368; Benzing v. Steinway, 101 id. 547; Bushby v. N. Y., L. E. & W. R. R. Co., 107 id. 374; O'Donnell v. E. R. G. Co., 91 Hun, 184.) The case of Kaare v. T. S. & I. Co. (139 N. Y. 369), relied upon by counsel, involves quite a different question from the one we are now discussing. Upon the trial it was conceded that the defendant had omitted to provide her elevator with an automatic attachment, in compliance with the provisions of section 8 of chapter 462 of the Laws of 1887, which require that “ it shall be the duty of the owner * * * of any manufacturing establishment where hoisting shafts or well holes are used, to cause the same. * • * ■* It shall also be the duty of the ■owner * * provide * * * • such proper trap or automatic doors, so fastened in or at all elevator ways as to form a substam rial surface when closed, and so constructed as to open and close by ■ action of the elevator in its passage, either ascending or descending.” In submitting the case to the jury the learned trial justice alluded to this omission, but stated in language that was not capable of mis■apprehension,' that it had nothing whatever to do with thé plaintiff’s right to recover, unless it directly contributed to the. accident ■of which she complains.. At the conclusion of the charge the court • was asked to instruct the jury that the absence of the automatic ■attachment did not contribute to the plaintiff’s injury; and, further, that its absence, in the 'circumstances of this case, had nothing to ■do with such injury. These requests were both declined, and the ■defendant’s counsel duly excepted. ■ We think neither of these exceptions presents error. It is true that, upon the occasion when the plaintiff received.her injury, the •door to- the elevator had been opened by one Brown, who was in the.defendant’s employ, and that while it remained open the elevator car was at the top of the. building. But it appears by the •evidence of the, witness Guetig, who was called as an expert, that, if the proper attachment had been provided, the door would have ■closed automatically, even under these circumstances, unless Brown had held it open, and it is by no means clear that he did so. . It is ■difficult to see, therefore, upon what theory this element of negli [255] gence could have been properly withheld from the jury. (McRickard v. Flint, 114 N. Y. 222; Freeman v. G. T. P. M. Co., 15 N. Y. Supp. 657.) The case, it seems to us, was carefully tried, and the various questions presented by the evidence were all submitted to the jury in such a manner as to deprive the defendant of "any right to complain. We, therefore, think the judgment and order appealed from should be affirmed. All concurred, except Follett, J., not sitting. -Judgment and order affirmed, with costs.