Knickerbocker v. General Railway Signal Co.

Spring, J.: The defendant is a corporation engaged in the manufacture of devices and appliances for use'in the construction and operation of railway signals. In- October, .1906, it carried on its business'near the- city of Rochester in a building about 200 feet in length and 100 feet in width and one story in height, except that there was a gallery above and extending over a part of this story. From the ground floor to the floor of the gallery was 15 feet. There were from 200 to 250 men employed in the building, the greater number on the lower floor. There was a freight elevator in one corner of-the building operated by a steel cable with hydraulic pressure, and as thé cable was pulled tip the car descended, and' when pulled down it was lifted upward. The elevator well Was closed on the north and east sides, and the front or south side was open and there was a wire partition on the west- side. When it 'was at the 'gallery floor it was open on three sides and a person could readily see from that floor to the entrance why of the elevator on the floor below. There was a catch ojierating automatically which stopped'the car at either floor.. The car moved very slowly, ordinarily making .the 15. feet in twenty-two seconds, and with maximum speéd in fifteen sec-, ends. Gatés Were provided which also operated automatically. When the car was on the ground floor the lower part of the-gate was seven feet above the floor, and as the car moved upward the gáte descended, closing up the entrance to the well when the car.reached the gallery floor. There were no rules for the operation of the car. It was used' principally for the carriage ■ of castings and appliances which were assembled in the 'gallery.. When one of the employees desired to use: it, if. it' was on the ground floor, he looked down, called [789] out or shook the cable as a warning. All knew of this plan. The man below could easily see up the fifteen feet and ascertain if the way was clear. On the 27th of October, 1906, the plaintiff, a man twenty-nine years of age, had been at work for the defendant operating this elevator for three weeks carrying articles up and down on a truck. In the afternoon he came down the car. with a block signal on a truck and wheeled it away when the car stopped at the ground floor. He returned to the car, piished the truck on, and, as he was getting on, the car started upward, he fell down, for what reason does not appear, and was caught by the automatic gate descending as the car went upward, and he was seriously injured. He claims that the defendant should have provided some signaling device to warn employees that the car was to be set in motion, and that proper rules for its operation should have been promulgated. In the first place, there is an utter absence of proof of any failure to give adequate warning. So far as appears in the record the man who started the car, if it was started from the gallery floor, may have called out to the plaintiff or may have shaken the cable, giving the recognized warning signal. There is no evidence bearing upon that subject. The plaintiff may have set the car in motion himself. The proof simply shows that-the car started upward as he was getting in. Why it started, or in what way the defendant or any of its employees was responsible for the upward motion is not disclosed. The plaintiff charges the defendant with negligence and has failed to prove this essential part of his case, and the discussion might end here. However, the plaintiff has not proved the necessity of any other warning signals than those used by all the employees—: including the plaintiff. The expert on the part of the plaintiff and those testifying for the defendant agreed that they never saw an elevator operating only between two floors equipped with a bell or other warning signal device. In cars running in buildings consisting of several stories devices of that kind are common. A signal by the person about to operate the car where it moves slowly and only a distance of fifteen feet may well be deemed adequate warning, and more effective for the protection of others than any mechanical contriv [790] anee. The efficiency of the plan by common practice prevailing in this manufactory had been demonstrated by long use, and appar-. ently no 'injuries had been sustained by any of the- many employees who had used this car. ■ The defendant was required to operate its car in a manner rear sonably safe for its servants. It was not called upon to adopt the. best possible method. (Bennett v. L. I. R. R. Co., 163 N. Y. 1, 5; Stringham v. Hilton, 111 id. 188, 195 et seq.; Healy v. B., R. & P. R. Co., 111 App. Div. 618, 620.) The rule applicable is thus, well stated in Stringham v. Hilton (111 Y. Y. 196): “The test'is not whether the master omitted to do something he could have done, but whether in selecting tools and machinery for their use, lie was .reasonably prudent and careful ; ,not whether better machinery might not have. been obtained, but whether that, provided was" in fact adequate and proper for the use to which it was to be applied.” ' The" plan, which the good judgment of the employees alert for their own safety had long adopted by common consent,'had. resulted in their security, and the defendant would not be expected to depart from -the -method tried by experience and experiment with some device: the usefulness of which had not been ^demonstrated, for no other like elevator seems to have been equipped with any mechanical contrivance.whatsoever. " ■ ■ Y or was the defendant liable for negligence in that it had not adopted rules for the operation of the car. Jiist what especial rule should -have been promulgated is not suggested by the counsel for the respondent, and none was suggested to the jury. The employees, by their own volition and with the acquiescence of the'defendant, had adopted their own method, and, so far as the evidence shows, had adhered to it without variation. Bules are important where the conduct of the business is complicated or dangerous, or their Utility has been proven, or where it is obvious that their adoption and enforcement are necessary precaution's in preventing accidents. (Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666; Berrigan v. N. Y., L. E. & W. R. R. Co., 131 id. 582; Kapella v. Nichols Chemical Co., 83 App. Div. 45.) There was no mystery and no intricacy in running-this elevator. The defendant could. not have foreseen the accident, which was [791] unusual and not to be apprehended. The only expert who testified on the subject of rules, in response to a question by the counsel for the plaintiff, said it was not “ customary to have rules posted in factories governing the men in the use, management and operation of freight elevators.” The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event. All concurred, except McLennan, R. J., who dissented in an opinion.