#### Carl Kern, Resp’t, *v.*The De Castro and Donner Sugar Refining Co., App’lt.

*(City Court of Brooklyn,*

*General Term,*

*Filed May 27, 1889.)*

*1.*Negligence—When question *fob*the jury.

The defendant operated a sugar refinery and had an elevator in the building, in which plaintiff, who was in their employ, worked. On the day when the accident in question occurred, the elevator caught below the third story, where plaintiff was at work, and when pushed off, the cables being loose it broke and fell, and in falling a piece of iron struck plaintiff on the head and fractured his skull. The elevator had no safety appliances, to stop or check its fall. Plaintiff offered testimony tending to show that the elevator was old and out of repair, that it did not run even, that its appliances were worn, that the superintendent was notified several times that it was unsafe, that it had fallen before, occasionally from the same cause. Defendant offered testimony contradicting that put in by plaintiff. *Held,*that the evidence justified the submission to the jury, whether defendant furnished reasonably safe machinery and appliances.

2. Same—Duty *of*master to guard against injury—Question of fact

*Eeld,*that it was a question of fact whether the master was bound to guard against the danger of injury to an employee on the elevator.

3. Same—Proximate causes.

*Eeld,*that the jury were justified in finding that the absence of safety appliances, and the act of the engineer and fellow workman in pushing the elevator off were both proximate causes contributing to the accident.

4. Same—Risk of injury—Contributory negligence.

Plaintiff had worked on the elevator about six hours. He was employed as fireman. *Eeld,*that he cannot, as matter of law, be held to have known of the method of construction of the elevator, and to have taken the risk of the injury; that the question of contributory negligence was for the jury.

*M. L. Towns,*for pl’ff; *Jackson & Burr,*for def’t.

*749Clement, Ch. J.

The plaintiff, while in* the employ of defendant, on July 10, 1885, was injured, as he claimed, through the negligence of the master, and without negligence on his part. At the trial term, plaintiff obtained a verdict for $5,000, and from the judgment entered thereon, .and the order denying a new trial, this appeal is taken.

The defendant operated a sugar refinery in this city, wThere plaintiff was at work, and the building was six or seven stories high, and contained two freight elevators, solely used for the purpose of hoisting boneblack. The plaintiff had worked, prior to July 10, 1885, for several years as a fireman for defendant, but had never been employed on either elevator but once before that date, and then but for a few hours, and on that date worked only a short time, when the elevator caught below the third story, where plaintiff was at work, and the engineer and other workmen pushed it off, and the cables being loose, it broke and fell, and, in falling, a piece of iron struck plaintiff on the head and fractured his skull. The elevator had no safety appliances, and there was nothing about it in case the cable became loose, if the elevator caught in the shaft, or in case the cable broke, to stop or check its fall. There was testimony offered, on the part of the plaintiff, tending to show that the elevator was old and not in repair; that it did not run even; that its appliances were worn; that the superintendent was notified several times that it was unsafe, and that it had fallen many times before, occasionally from the same cause as at the time in question, and also from other causes. An expert witness for plaintiff also said that a safety appliance is necessary, and generally used on freight elevators that run through five or six ■stories. Testimony was offered, on the part of the defense, contradicting that put in by the plaintiff. The questions of fact were submitted to the jury under a charge to which no exception was taken, and the law applicable to the facts of the case was fully and carefully stated, and the main question to be decided on this appeal is, whether or not the motion for a nonsuit should have been granted.

We think that there was sufficient evidence in the case to justify the submission of the question to the jury, whether the defendant furnished to the plaintiff reasonably safe machinery and appliances. The testimony of the two expert witnesses tends strongly to show that all elevators, whether used for carrying passengers or freight, ■should have some appliances to prevent them from falling, and we have not been referred to any testimony, on the part of the defendant, tending to contradict the statements of the two experts. While the defendant could use an old elevator without modern appliances, yet there was no proof that safety appliances were modern; they were in general use when the elevator in question was constructed.

There is no doubt that the defendants were not bound to *750guard against recklessness on the part of their employees, but it appears in the case that the elevator had fallen, several times before, for the same reason as when plaintiff was hurt, though the cable had not broken on those occasions. The employees were obliged to push the elevator off when it caught on the side, and it can be fairly claimed by the plaintiff’s counsel that it was not safe in appliances, when its liability to fall, if caught, depended, as on this occasion, on the care of the engineer in reversing the engine and taking up the slack cable, or on the care of the plaintiff in pulling the reverse check rope on the third story, which he testifies" he knew nothing about, and, as to its use, he had not been instructed.

The counsel for appellant also contends that the defendant is not liable, because the chances that, if the cable did break, an injury would result to an employee, were so-remote that defendant was not bound to guard against the danger. Should the defendant have foreseen that an employee might be injured if the elevator fell? If the elevator, held by cables fastened on the top of the building five or six stories high, was allowed to drop several feet, the chance of a break in the cables when they were tightened with a sudden jerk was great, and we think it was a question of fact whether the master was bound to guard against the danger of injury to an employee on the elevator.

The difficult and close question in this case is as to the proximate cause of the injury, whether the absence of safety appliances, or the act of the engineer and the fellow workmen of the plaintiff, or whether it resulted from both, causes.

In the case of *Ring*v. *The City of Cohoes*(77 N. Y., 83), a head note states the decision in that case fairly, and seems in point on the question before us. “Where several proximate causes contribute to an accident, and each is an efficient cause, without which the accident would not have happened, it may be attributed to all or any of them; but it cannot be attributed to a cause unless, without its operation, the accident would not have happened.”

We think, on the evidence in this case, the jury could find both causes to be proximate, and, if so, the master was liable. *Ellis*v. *N.*Y., *L. E. and W. R. R. Co.,*95 N. Y., 546.

The elevator was unsafe, not by reason of its negligent use, but for the want of safety appliances, and the case of *Stringham*v. *Hilton*(111 N. Y., 188; 20 N. Y. State Rep., 978) does not, therefore, apply.

It is also claimed by the defendant that the plaintiff accepted the risk of his employment, and, at the same time, knew of the absence of safety appliances. He had worked on both elevators but about six hours, though he had been employed in the fire-room for three years. This was a large establishment, containing many employees, and the *751plaintiff cannot be held, as matter of law, to have known of the method of construction of the elevator, and to have taken- the risk of injury. We also hold that the question of contributory negligence was for the jury.

The portion of the testimony of Dr. Gray, which was objected to, was struck out of the case before it was concluded, and no injury was done to defendant. The testimony offered at folio 308 could have been admitted or excluded in the discretion of the court. The exceptions at folios 385 and 396 we have examined, and do not consider either of them well taken.

The judgment and order denying a new trial must be affirmed, with costs.

Osborne, J., concurs.