Croce v. Buckley

From the facts, as stated in the opinion of Mr. Justice SCOTT, it is evident that the elevator was a scaffold within section 18 of the labor law (chapter 415, p. 467, Laws 1897), which is as follows:

“A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure,

shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed or operated as to give proper protection to the life and limb of a person so employed or engaged.”

As the elevator could be set in motion from any one of the four floors of the building by simply pulling a rope, it was not, I think, a safe and proper scaffold, within the contemplation of the above statute, even though it be admitted that it was in sound condition as an elevator, and that, while at rest, it was suitable for the use to which it was put, because, unless the power were shut off, it was liable to be moved. Nor was the arrangement made by the defendant with the superintendent of the building for its exclusive use, to which defendant testified, but which it was established was not observed, a sufficient discharge of the duty imposed upon the defendant by the statute. It was unsuitable, as a scaffold, by reason of its mobility, and this was the immediate cause of the accident. It was not essential to the plaintiff’s cause of action to show the cause of the sudden starting of the elevator; her case was established by showing that the scaffold, as such, was defective or improper, and that the accident resulted therefrom.

Upon the evidence there was a question as to whether or not the defendant fulfilled his duty by safeguards which would prevent the elevator being set in motion. It follows, therefore, that the judgment dismissing the complaint should be reversed, and a new trial granted, with costs to appellant to abide event.

INGRAHAM, CLARKE, and HOUGHTON, JJ., concur.

(dissenting). The defendant was a contractor engaged in doing work upon a building in the city of New York. Plaintiff’s intestate was a laborer employed by him in the course of the work. Two buildings standing side by side were known, respectively, as “Nos. 310 and 312 West Thirty-Ninth street.” No. 310 was four stories in height, and No. 312 was only three stories. The work upon which defendant was engaged was the erection of an additional story on No. 312; and, in the course of this work it became necessary to cut a hole through the brick wall between the two buildings. No. 310 was used as a furniture warehouse, and in it was a freight elevator running to the top of the building, and which was commonly used for carrying furniture up and down, and was apparently used at will for this purpose by the employes in both buildings. It ran to the top of the higher building, and on each floor below the fourth there were entrances to it from both buildings. There was no conductor or other person especially charged with running the elevator, but any one could start it up or down, and stop it by pulling on a wire rope; and to do this it was not necessary that the person operating it should go on to the elevator, since the rope controlling it could be reached from the-outside.

The opening through the wall was to be made into the elevator shaft, and defendant employed one Wigmore, a mason, and plaintiff’s de

The evidence suggests no explanation whatever as to the cause of the accident. No defect in the elevator or' any of its appliances is shown, and indeed it was expressly conceded on the trial, by plaintiff, that the elevator, considered with reference to its use as an elevator was in sound condition. Nor does it appear, who, if any one, was instrumental in setting it in motion, except that it w-as testified that neither of defendant’s workmen started it. Upon this state of facts the court dismissed the complaint. It is now urged upon behalf of the plaintiff that, although safe, suitable, and proper, when used as an elevator, the car became and was unsafe, unsuitable, and improper, and not so constructed, placed, or operated, as to give proper protection to life and limb when used as a place to stand upon when working, at which time as it is insisted, it became in effect a scaffold within the meaning of section 18 of the labor law (chapter 415, p. 467, Laws 1897). With this last contention we are disposed to agree, and to hold that when hoisted up to the top story, and there used as a place upon which the

The defendant, however, even under the terms of the labor law, was not an absolute insurer of the safety of his workmen while working in the elevator, and was not called upon to foresee and guard against every possible contingency, however remote and improbable. He was not, therefore, bound to guard'against every unexplained and unexplainable accident, such as that which did occur. At most, he can be held bound only to foresee that,'notwithstanding the promise of the superintendent, the elevator might be used in the way in which it was obvious it might be used if no precaution were taken; that is, for running up and down by the employés of the building in the course of their business. Although he did not guard absolutely against this contingency, the accident did not occur, so far as the evidence shows, from any such use. True, the elevator was used by the employés in the building, and thereby, perhaps, the workmen were put in peril; but the peril from that cause never ripened into injury. What produced the accident was the sudden jerking of the elevator up against the beams; but what produced that sudden jerking up nowhere appears, and it is indulgence in the merest conjecture, without evidence to support it, to presume that it resulted from the act of some employé

The judgment should be affirmed, with costs.