#### Mary Sullivan, as Administratrix of her Deceased Husband, Plaintiff, *v.*Edward E. Poor et al., Defendants.

(Supreme Court, New York Trial Term,

October, 1900.)

Negligence — Tenants not liable for a defect in a freight elevator, already on the premises, and duly inspected.

Where tenants, of a building already provided with a sidewalk freight elevator, have had the same duly inspected from time to time and it has been pronounced safe, they cannot be made liable in damages to the administratrix of an employee who, while descending upon the elevator In the course of his duty with a box of freight, was killed because, the machinery having become disarranged, the platform tipped and threw him and the box into the subcellar of the premises.

Action for causing death of intestate by negligence of defendants in respect to a freight elevator on their premises.

Dunphy *&*Pearsall, for plaintiff.

Frank Vernon Johnson and Wm. N. Cohen, for defendants.

McAdam, J.

The plaintiff’s husband was employed by the defendants, and among his other duties he was required to operate a sidewalk freight elevator in taking goods to and from the basement and subcellar of the premises Nos. 19 and 21 Thomas street, in the borough of Manhattan, where the defendants carried on business as wholesale commission merchants. On September 29, 1899, while said employee was taking down a box of goods weighing about 400 pounds, part of the machinery became disarranged and the platform upon which he was standing tipped and threw him and the box into the subcellar of the building, as a result of which he sustained injuries that caused his death. The defendants did not own the building, nor did they construct the elevator. They were mere tenants, to whom the use of the elevator had been transferred in connection with the premises they hired. It is impossible, therefore, to charge the defendants with improper construction without evidence of knowledge, especially where the defects were not obvious upon careful inspection and examination. Upon receiving possession the defendants had the elevator in*576spected by competent experts, who pronounced it safe. Such inspection was continued from time to time up to the occurrence of the accident. It would, therefore, seem that the defendants exercised the care of ordinary prudent persons, which is the test in determining their liability. Assuming that the doctrine of *res ipsa loquitur*applies, the answer is that the defendants by uncontradicted evidence established freedom from personal negligence, the gravamen of the action. In Biddiscomb v. Cameron, 35 App. Div. 561; affd., 161 N. Y. 637, the lower court said: “The question presented upon this appeal is whether the defendants provided a reasonably safe appliance for the use of the deceased. The evidence shows that the elevator was of a construction in common use, and the safety appliances were such as ordinarily obtained in such structures. The defendants were not the insurers of the safety of the appliances provided by them, but they were bound to use reasonable diligence in providing safe appliances for the use of their employees. From the evidence it would seem that the clutch in question ought to have operated under the circumstances presented here. If, however, the defendants used reasonable care in seeing that these appliances were in order, the fact that they did not operate under the circumstances in which they .might naturally have been supposed to do so, does not make them liable for the injuries sustained. * * * The theory of the plaintiff, as stated by counsel, seems to be that a master must see that the place where his servant works or the appliance with which the servant is provided or the machine he operates is safe. We are not aware of any such rule which makes the master an absolute insurer of the safety of the appliance and of the place where his servant works. As has already been stated, he is bound to use reasonable care in this regard; and that is all that the law requires.” There are many cases sustaining this general principle. Carlson v. Phcenix Bridge Co., 132 N. Y. 273; Devlin v. Smith, 89 id. 470; Burke v. Witherbee, 98 id. 562; Probst v. Delamater, 100 id. 266; Stringham v. Hilton, 111 id. 188; Harley v. Buffalo Car Co., 142 id. 31; Sisco v. Lehigh *&*H. R. R. Co., 145 id. 296; Shattuck v. Rand, 142 Mass. 83. If the action had been by a tenant or visitor of a tenant for injuries received while being carried up or down by the landlord’s employee in charge of the elevator, a different question would be presented. We are dealing now with a freight elevator, under the management of an em*577ployee who was killed while on one of the journeys he had contracted to make. It appears that one of the defendants had used this same elevator in safety on several occasions, though freight had been carried on it at the same time, so that the elevator must have appeared safe both to the decedent and the defendants. The plaintiff offered evidence that accidents had happened on the same elevator before the defendants received control of it, but the defendants had no notice thereof, so that these accidents cannot charge the defendants with knowledge of defective condition. The case in all its substantial features resembles Hart v. Haumburg, 123 N. Y. 641, in which it was decided that defendants similarly situated were not liable for an accident occurring to an employee on a freight elevator. It is impossible to find in the evidence any solid legal ground for holding the defendants liable for the misfortune that happened to the decedent, and for which his administratrix demands pecuniary compensation. The complaint must, therefore, be dismissed.

Complaint dismissed.