#### James B. Regan, Respondent, *v.*Burr & Company, Appellant.

First Department,

November 14, 1913.

Bailment — negligence—injury to automobile in possession of bailee by fall of freight elevator—proof not establishing negligence of bailee.

The plaintiff delivered his automobile to the defendant to have the body removed and a new body attached. The defendant placed the car upon a freight elevator at the fifth floor in order to convey it to the basement of its factory, and while so doing the link of a chain which was part of the check line used to stop the elevator caught on the end of a bolt which projected from three-eighths to one-half inch from the nut holding it so that the employees operating the elevator were unable to control its movements and it went to the bottom of the shaft, damaging the automobile. It appeared that the freight elevator was of standard construction and periodically inspected by an insurance company and had been overhauled only two days before the accident. On all the evidence, *held,*that the negligence of the defendant in installing or operating the elevator was not established and that the cause of the accident could not have been reasonably apprehended.

Ingraham, P. J., and Laughlin, J., dissented, with memorandum.

Appeal by the defendant, Burr & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th *132day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of November, 1912, denying defendant’s motion for a new trial made upon the minutes.

*Frank V. Johnson,*for the appellant.

*Max D. Steuer,*for the respondent.

Dowling, J.:

This is an appeal from a judgment entered upon a verdict in favor of plaintiff in the sum of $2,500.

Plaintiff was the owner of a Pierce-Arrow automobile from which he desired to have the touring body removed and a limousine attached in place thereof. He employed defendant to do the work of removing the one body and substituting the other, and for that purpose the car was delivered at defendant’s place of business in the city of New York. Shortly before it had been overhauled and is claimed to have been in first-class condition in every particular when it was delivered on February 2, 1911. After passing into defendant’s custody the car was next seen by the plaintiff’s representative on February fifth when it was lying at the bottom of the elevator shaft in defendant’s factory so badly damaged that the plaintiff claims that it was practically useless, although defendant claims that it could have been repaired at an expense of approximately $1,200. It appears that the' car had been placed upon the freight elevator by defendant’s representative for its conveyance from the fifth floor of the building to the basement. This elevator was operated by means of ropes by the employee who had placed the car thereon and who remained at the fifth floor. No one was supposed to ride upon this elevator, and its control was entirely outside of the elevator itself. After the elevator had been started on its descent and had gone some distance it continued its downward course despite the efforts of defendant’s employee to stop it by means of the check rope, so that the elevator with the car upon it finally struck the bottom of the shaft. The mechanism operating the elevator still continued to move through the application of the power, and as the result thereof the counterweights fell and assisted in damaging the car. *133Just how much of the damage was due to the fall of the weights and just how much to the shock of the elevator platform striking upon the bottom of the shaft does not clearly appear. When the power was finally shut off some two minutes or less had elapsed.

It appears that the capacity of this elevator was 5,000 pounds, and that the chassis weighed between 3,200 and 4,000 pounds. The elevator in question was a standard one, bought from the American Elevator Company and inspected periodically by the Travelers’ Insurance Company, any repairs suggested after the inspection being promptly made by the company. It was last overhauled by them on January 20, 1911, the work having been completed on February third, only two days before the accident.

In the operation of this elevator its motion was controlled by ropes, the pulling of a rope in one direction causing the elevator to ascend, and its pulling in the other direction causing it to descend. There was a check line, the upper end of which was joined to the two parts of the operating cable by means of chains, and when that line was pulled taut the two chains became centered and the operating wheel was brought into a proper position to shut off the power.

When it was sought to shut off the power from the elevator on the day of the accident, it sufficiently appears that one of the links of the chain attaching the check line to one side of the operating cable became caught or fouled upon the end of one of the bolts by means of which the upper stop ball was clamped to the operating cable. Such being the situation it became impossible to move the operating cable so as to shut off the power. The operating wheel being thus held fast, the car continued to descend. The reason that the link of the chain hereinbefore referred to became fast to the end of one of these bolts was that the end projected from three-eighths to one-half inch outside of the nut through which it passed. Despite the periodical examination of this elevator by the inspection company, no one seems to have remarked this projection, although there is evidence that it should have been discovered upon any proper inspection. It does appear from the examination of the plaintiff’s own expert, who testified that this method *134of construction with such a projection was not a safe one, that the device used was an ordinary one, and that the danger of one of the links catching in such a projection had never been heard of by him before this particular accident, nor had he any reason to believe there would have been danger therefrom from his experience prior to this occurrence. The testimony shows that this elevator was of an ordinary type commonly used for the purposes of a freight elevator in New York city, and there was no attempt made to show any defect in its construction, apart from the projecting bolt just referred to.

In *Stewart*v. *Stone*(127 N. Y. 500) the rule governing the liability of a bailee is laid down as follows: “Asa general rule, when a bailee fails on demand to deliver to the bailor property to which the latter is entitled, the presumption of liability arises, and if the goods cannot be found it furnishes the imputation of negligence as the cause. *(Fairfax*v. *N. Y. C., etc., R. R. Co.,*67 N. Y. 11.) But such *prima facie*case may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident not within the control of the bailee; then the onus continues upon the bailor to prove that it was chargeable to the want of care of the bailee. *(Claflin*v. *Meyer,*75 N. Y. 260; *Mills*v. *Gilbreth,*47 Me. 320; 74 Am. Dec. 487.) And although it may be that the proof given by him, explanatory of the reason for non-delivery, may disclose circumstances which, in their nature, permit or require the inference of negligence on his part *(Russell Mfg. Co.*v. *N. H. Steamboat Co.,*50 N. Y. 121), the affirmative of the issue is not shifted to the defendant, but remains through the trial with the plaintiff. *(Heinemann*v. *Heard,*62 N. Y. 448; *Blunt*v. *Barrett,*124 id. 117.)”

Upon the whole case as presented to us not only did the plaintiff fail to prove negligence upon the part of the defendant in the installation or operation of this elevator, but the preponderance of the proof is that the elevator was a proper and sufficient one at the time of its installation, that it was maintained in proper condition by frequent and adequate inspection, and that the existence of this slight projection in the bolts beyond the surface of the nuts through which they passed was ,not one from which it could reasonably be appre*135hended that danger would arise. As a matter of fact no one had foreseen the possibility of such an accident occurring due to this cause. We are of the opinion, therefore, that the finding that the defendant was negligent in the maintenance and operation of this elevator is against the weight of the evidence, and the judgment and order must, therefore, be reversed, with costs, and a new trial granted, with costs to the appellant to abide the event.

Scott and Hotchkiss, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.

Ingraham, P. J. (dissenting):

Plaintiff delivered this automobile to defendant, who undertook to make certain repairs - or additions to it at a fixed price to be paid by the plaintiff to the defendant. While the automobile was in the defendant’s custody it was injured, and on the plaintiff’s demand for the return of his automobile with the repairs or additions, such return was refused. As I understand the rule, on the failure to deliver the automobile to the plaintiff a presumption of liability arose, which would entitle the plaintiff to recover unless the defendant established that the return of the automobile was prevented by some misfortune or accident not within the defendant’s control. To meet this burden the defendant undertook to show that the automobile was injured by the fall of an elevator owned and operated by the defendant, and that the fall of that elevator was not due to any negligence of the defendant. Considering the presumption that arose, the nature of the accident, the condition of the elevator owned and operated by the defendant, I think a question for the jury was presented, and as that question was submitted to them, I do not think their verdict should be disturbed.

I, therefore, dissent from the reversal of this judgment.

Laughlin, J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.