Warner v. Lucey

Van Kirk, J.: The case was tried as a negligence action and submitted to the jury on the theory that the elevator" was not of sufficient strength and carrying capacity to answer the purposes intended, namely, to be used in a public garage for storage of cars, of the usual weights, on upper floors reached by the elevator. The jury was justified in finding upon the evidence that,, when the lease was made, the elevator, to the knowledge of the defendants Lucey, was unfit for the use intended; that they knew its capacity and condition and had been warned of its insufficiency, but they, without making any changes therein, made the lease to the defendants Dreher and Richter; that, while there was evidence tending to show that there was a loose brake shoe and a broken safety device, these defects were the natural consequence of overstraining the elevator and would not have developed and caused the elevator to fall had it been of sufficient carrying capacity and fit for the use intended; that the constant overloading of the car would cause a belt to slip, a brake band to loosen or the supporting cables to break -under circumstances such as would not have caused either of such defects if the elevator itself had been of sufficient capacity; that the elevator fell and the injuries were received by plaintiff because of its insufficiency and unfitness. The garage was intended by the lessors and tenants for public patronage, to be used by any one who applied [244] and paid for the storage of his car, whether of the lighter or heavier weight. It was a public use or place, as is an inn or warehouse. From this use both parties derived a profit; the lessors through the rent reserved. This plaintiff was in the position of a patron properly on the premises; he was lawfully there. • The lessees are liable for unsafe conditions or defects known to them, or which ought to have been known to them, while they occupied the leased premises. The lessors are liable for the consequences of the unfitness and insufficiency of the elevator when put to the uses they intended, a condition which to their knowledge existed when the lease was made, and for which use they received stipulated rentals. (Swords v. Edgar, 59 N. Y. 28; Barrett v. Lake Ontario Beach Imp. Co., 174 id. 310.) A covenant by a lessee to keep the premises in repair does not relieve a lessor of liability to a third party for a defect which existed when the lease was made. (Swords v. Edgar, supra, 36, 37.) In the Barrett Case (supra, 314) the court said: “ If the premises are rented for a public use for which he [the lessor] knows that they are unfit and dangerous, he is guilty of negligence and may become responsible to persons suffering injury, while rightfully using them. Such instances would be where he lets a warehouse, so imperfectly constructed that the floors will not support the weight necessarily upon them; or where he lets a building for public amusements, or exhibitions, or other public purposes, and its construction is so unsafe, structurally, as to be the cause of injury to any one.” The law and the evidence justified the verdict. There are a number of exceptions which the appellants urge as grounds for reversal. The record is long and the case was difficult for both the attorneys and the court. We have examined each of the exceptions urged and have read carefully the charge of the court and its rulings and explanations in answer to the appellants’ requests to charge. We think the case was fairly submitted to the jury and that the real question upon which liability rests was prominently and clearly presented to them; and have concluded that there are no errors in the rulings of the trial court, not corrected, which affect a substantial right of the appellants. (Civ. Prac. Act, § 106.) In our view the result of the trial is fair and just. It is not claimed that the amount of the verdict is excessive. The judgment and order should, therefore, be affirmed, with costs. Cochrane, P. J., and McCann, J., concur; Hinman, J., dissents in part with an opinion; Hasbrouck, J., dissents on the ground that Roulier, who operated the elevator upon this occasion, was a volunteer.