Kennedy v. Wanamaker

Laughlin, J.: On the 11th day of January, 1908, the plaintiff while in the employ of defendant and engaged in the performance of his duties as a porter in cleaning the shaft of a passenger elevator in the basement of the defendant’s department store in the city of New York, was struck and severely injured by counterweights of the elevator which descended not. owing to any accident to the machinery, but by the operation of the elevator by the regular operator thereof, Clark, who was also in the employ of defendant and this action is brought to recover damages for the injuries thus sustained. The complaint contains two counts, in both of which liability is predicated upon the same state of facts; excepting that in the first, a cause of action at common law is alleged and the second attempts to allege a cause of action .under the Employers’ Liability Act. The second count was abandoned on' the trial. The question presented for decision on this appeal is whether the plaintiff alleged and proved a cause of action against his employer for negligence under the common law. ' . The plaintiff alleged in the first count of his complaint,' and his testimony is to the same effect, that the foreman of the porters directed him to clean the shaft; that in accordance with the custom which had existed since defendant took charge of the store in October, 1896, and for two or three years prior thereto during the occupancy thereof by defendant’s predecessor, during all of which time plaintiff was employed in the same capacity, he thereupon informed the operator of the ele [430] vator that he was about to clean the shaft in the basement and directed said operator to post the usual notices; that thereupon framed notices provided for that purpose, printed in large type, were posted upon the several floors at the entrance to • the elevators on which were the words “Elevator not running,” and the elevator was brought to a stop at the first floor where it was the duty of the operator, according to the custom, to hold it until notified by the plaintiff that his work in the shaft below was completed; that notwithstanding this, after the plaintiff had been working in the shaft below the elevator for a period of about forty minutes the operator moved the elevator to about the sixth floor causing the counterweights to descend in the grooves in which they slid and. to come in contact with plaintiff; that when the elevator shafts above the basement floors were cleaned by the porters like notices were hung out and the porters stood upon the elevators in doing their work and' signaled the operator from time to time as it became necessary to change their position. The negligence charged is that the defendant failed to properly protect the plaintiff, to make and enforce proper rules with respect to giving warning, to refrain from operating the elevator, to post sufficient notices and to. instruct its servants properly, and that it negligently caused the elevator to be operated while plaintiff was in the basemept below, and negligently permitted the elevator to become and remain out. of repair so that it would start without the application of power, and employed incompetent servants. The only material evidence given bearing on any of these theories of negligence has already been stated. There was no evidence of any defect in the elevator, and no evidence that any of the . operators were incompetent, other than might be inferred from moving the elevator on this occasion in violation of the custom; but there is no- evidence that the operator ever did this before. The evidence shows that all necessary notices were posted as already stated. A reversal of the judgment is sought principally upon the ground that the defendant neglected to adopt and promulgate rules, and to properly instruct its servants. ■ The plaintiff had, I think, received all necessary instructions, and he assumed the risk of any negligence in this regard, for [431] he was fully acquainted with, the manner in which the work was done and knew the danger quite as well as his employer. It is not necessary to decide whether the nature of this business was such that it was the duty of the defendant to adopt and promulgate formal rules or to give specific instructions to its servants with respect to the operation of the elevators while porters were working in the shaft, for if the common law devolved that duty on the defendant it is not to be presumed that it was not performed, and it appears by the evidence that there were printed and written instructions for-the guidance of the elevator operators, and it was not shown that these instructions were not communicated to them. If that would have availed plaintiff the burden of showing it rested upon him and not on the defendant. The only negligence to which the evidence points is the neglect of the operator of the elevator to perform his duty to refrain from moving the elevator in a manner that would precipitate either it or the counterweights on the plaintiff, who was working below him, in the shaft. Assuming, as we must, that the elevator operator was properly instructed with respect to the performance of his duties, then I am of opinion that the defendant was not required to employ another man or men to stand guard over the elevator operator and give notice' to the plaintiff in case the elevator was negligently started in violation of the custom and of the duty devolving on the operator. If it may be said that it was the duty of the defendant at common law to hue another employee to watch the elevator operator, then it is difficult to see where that duty would end, for as well might it be said that the jury might speculate and say that the further duty devolved on the defendant to employ still another watchman to watch the first and see that he performed his duties, and the number of employees to be thus employed to see that other employees performed their duties would in each case depend on the opinion of the jury with respect to the particular facts. No authoritative decision in this jurisdiction has as yet gone to that extent, and it would be opposed to precedents. The effect of the opinion of the presiding justice is, I think, to make ,the master responsible for the negligent act of the elevator operator. Within well-decided precedents the elevator opera [432] tor was a coemployee the risk of whose negligence plaintiff ■ assumed. ' " • . I am, therefore, of opinion that, under weli-settled law, the. plaintiff failed to establish a cause of action, and that the nonsuit was proper. .It follows, therefore, that the judgment should be affirmed, with costs. . MoLatjghlin and Miller, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.