Smidt v. Buffalo Cold Storage Co.

Merrell, J.: This action is brought by the plaintiff to recover of the defendant damages which he claims to have sustained by reason of defendant’s negligence. The action has twice been tried, the first trial resulting in a verdict in favor of plaintiff for the sum of $6,500. Judgment thereon was reversed on appeal to this court and a- new trial ordered. (149 App. Div. 934.) Upon the second trial a verdict was rendered in favor of the plaintiff and against the defendant for the sum of $10,000. This appeal is from the judgment entered upon said last-mentioned verdict. On the last trial the case was submitted to the jury as a common-law action and not under the Employers Liability Act. The facts, briefly, are as follows: On July 8, 1910, the plaintiff, an employee of defendant at its cold storage plant in Buffalo, was working in an elevator shaft in one of defendant’s warehouses. The particular warehouse in which plaintiff was employed was of comparatively recent construction, having been built about two years. The elevator in question had been in use only about three months-. On the day in question, plaintiff, with several fellow-workmen, was engaged in installing a door leading from the basement into the elevator shaft. The door was heavy, being of refrigerator construction, and required the services of a number of men. The principal part of the work of setting up this door was accomplished during the forenoon, and at the time the plaintiff and his fellow-workmen left for their luncheon at noon practically all that remained for them to do was to lift the door, which had been attached by its hinges to the frame, and place the whole structure in an upright position in the opening between the basement and the elevator shaft. To insure the safety of those employed in the shaft, including plaintiff, one Sanders, who seems to have been in charge of the work, placed an employee, Bernhardt, on the first floor at the elevator, with full and explicit instructions to see to it that the elevator was not operated down into the basement by any one while the work was in progress and the men were in the shaft. Bernhardt was a competent and trustworthy employee of a year’s connection with the concern. It had been his principal duty to operate the elevator between the different floors of the estab [780] lishment for carrying freight and packages. The instructions given him were repeated several times and were heard and understood by the plaintiff, the plaintiff testifying that he heard Sanders tell Bernhardt, the elevatorman, not to let any one run the elevator down; that while he was not familiar with much of the English language, he understood that, and that he heard Bernhardt reply, “All right.” Plaintiff also testified that he heard Sanders tell the elevatorman this before dinner and once after; that he heard him tell him twice; that he heard Sanders say to Bernhardt, “ Don’t let anyone run the elevator down.” Sanders testified upon the trial of his repetition several times to Bernhardt of such explicit instructions. Upon the return of the plaintiff and his fellow-workmen after luncheon on the day he was injured, he, with two others, first went inside the elevator shaft and the door was placed upright in the opening. Sanders and another coemployee of plaintiff, who had been with him inside the elevator shaft, then by means of a ladder climbed out upon the first floor, leaving plaintiff inside the shaft to wedge up the structure while they went outside and fastened it securely. Sanders testified that as he came up out of the shaft preparatory to descending into the basement on the outside, he saw Bernhardt, and that he was standing right by the shaft and had been looking down; that he said to him that there was still a man down in the shaft, and that he must be very careful and let no one run the elevator down, because plaintiff had no way to get out, because they were going to put the door in the opening; that Bernhardt replied, “ All right, I will watch it; ” that Sanders then left him right there by the elevator shaft right by the door and descended into the basement. For some unexplained reason Bernhardt does not seem to have been faithful to his trust and upon some pretext left his post of duty and during his absence another employee, ignorant of plaintiff’s position, entered the elevator and descended with it upon plaintiff, causing him serious injury. The elevator was operated by means of electricity, and by a cable it was within the power of Bernhardt, as he stood at his post where Sanders left him, to immediately stop the elevator, if any attempt was made to move it. [781] It is claimed on the part of plaintiff that defendant did not discharge its full duty to plaintiff in the premises, and that either the power should have been turned off or some mechanical means provided to block the elevator while the plaintiff was in the dangerous position at the bottom of the shaft. I am unable to adopt this view or to understand how the defendant can justly be held hable for plaintiff’s unfortunate accident. It seems to me that the defendant, when it placed Bernhardt, concededly an intelligent and competent man, in charge of the elevator, with explicit directions repeatedly given him not to permit the elevator to be lowered, he then understanding fully the operation of the car and being in a position to control it at all times, discharged its full duty toward the plaintiff. Ho question is raised' as to Bernhardt’s competency or qualifications for the work. He had always proven reliable and he was thoroughly familiar with the operation of the car. Had he attended to his duty and obeyed his instructions, plaintiff would not have been injured. It seems to me that the precaution that the defendant took was that which a reasonably prudent person would naturally take. All that the defendant was called upon to do was to exercise reasonable care for the protection of its employees. It is very easy to look back, now that Bernhardt disobeyed his instructions, and say how plaintiff might have been protected. It probably was within the power of the defendant to build a false work within the shaft or otherwise block the car so that it would be impossible to lower it. Indeed, it might have removed the car itself from the shaft, but it would not be required in the exercise of ordinary care to do that. Plaintiff’s injury was the direct result of the carelessness of a competent fellow-servant, and it seems to me that plaintiff, knowing fully the nature of the precautions taken by defendant for his safety, clearly understanding that the operation of the car was to be stopped by the placing, of Bernhardt on watch, engaging in the work that he did, assumed the risk of his employment. Plaintiff’s suggestion that prudence would have led defendant to disconnect the current by the switching device in the penthouse at the top of the elevator shaft, and so stop, the [782] operation of the car during the prosecution of the work in the shaft is hardly reasonable. The device mentioned was an automatic contrivance whereby, in case of accident, automatically the car was stopped. According to the testimony it never was used for the purpose suggested, and it would appear that in attempting to switch off the current in that manner grave danger would be encountered. As before stated, it seems to me that the master in this case discharged its whole duty to the plaintiff by placing Bernhardt on watch. It is not the master’s duty to furnish its employees with an absolutely safe place to work. He is only called upon to use reasonable care and prudence in supplying such a place. (Harley v. B. C. M. Co., 142 N. Y. 34.) To. place upon the master a greater duty would be to compel him to insure the safety of his employees. (Butler v. Townsend, 126 N. Y. 105; Sheridan v. Interborough Rapid T. Co., 101 App. Div. 535; Wootten v. Flatbush Gas Co., 102 id. 294.) In submitting the case at bar to the jury the court used this language: “ Under ordinary circumstances, the master has performed his duty when he has furnished proper equipment, competent men to opérate it and proper safeguards against accident in the ordinary operation of the machinery. But it is urged here that the circumstances were extraordinary.” It would appear that it was upon the theory that the circumstances here were extraordinary that led the court to submit the case to the jury. It does not seem to me that the fact that the warehouse was in some respects incomplete, particularly that the door in question was being erected, is sufficient to authorize the jury to find that the circumstances concerning this accident were extraordinary. The position in which plaintiff was placed differed in no degree in the danger to him than as though he had been called into the elevator shaft on other duties than construction work. So far as the car was concerned it was complete and it had been in operation for some months. While plaintiff was engaged in installing the door in question he was in no more danger than as though he had entered the shaft to clean it or upon some other errand. He would have been in a like dangerous posi [783] tion in either case, and his danger was in nowise increased because of the fact that he was engaged in new construction. It seems to me the case at bar is in principle like the recent decision of Kennedy v. Wanamaker (145 App. Div. 428; affd. without opinion, 207 N. Y. 724). In that case the employee was sent into the elevator shaft for the purpose of cleaning it. The man charged with the duty of operating the car was told by the employee before he entered the shaft that he was about to do so for the purpose of cleaning it in the basement and directed such operator to post the usual notices, “ Elevator not running,” and the elevator was brought to a stop at the first floor, as it was the duty of the operator, according to custom, to hold it until notified by the man in the shaft that his work below had been completed. The operator disregarded this instruction, shot his elevator to the sixth floor, causing the counter-weights to descend and injure the man in the shaft. The court held in that case that the provisions for the operative’s safety were sufficient and that he assumed the risk of the negligence of the operator; that he was as fully acquainted with the manner in which the work was done and knew the danger quite as well as his employer. The testimony shows in the case at bar that Smidt clearly understood the method which had been adopted for his protection. The Wanamaker case, it seems to me, is directly in point, and the court there held that the negligence which caused the injury was that of a competent coemployee and that such negligence on his part was assumed by the plaintiff. I think the same applies to the case at bar, and am, therefore, of the opinion that under well-settled law the plaintiff cannot recover and that the judgment and order of the court below should he reversed and a new trial ordered, with costs to abide the event. All concurred, except Kruse, P. J., who dissented in a memorandum.