Krey v. Schlussner , 42 N.Y. St. Rep. 917 ( 1891 )

Pratt, J.

The testimony clearly showed that the elevator rope was so worn that its insufficiency would have been apparent upon even a casual inspection. The defendant owed a duty to all persons whom he invited to use it to see that it was maintained in a reasonably safe condition. In that duty he failed, and upon that branch of the case a verdict would properly have gone against him. The question whether the deceased was guilty of contributory negligence must be considered in view of the duty of plaintiff. " Deceased had a right to rely upon defendant having performed the duty cast upon him by the law, viz., to have the elevator in a safe condition. Had it been in such condition, the act of deceased in standing below it when working it would not have exposed him to danger. Worked from below, as its construction required, it is not easy to see how the operator could be free from danger if the rope was defective. Had the rope been sound, as deceased had a right to presume, danger would not have existed. We do not see that deceased can be said to be responsible for the injury he received. Being young, had his conduct not been marked with the care to be expected from an older person, a less degree of caution would have satisfied the law. McGovern v. Railroad Co., 67 N. Y. 417; Byrne v. Railroad Co., 83 N. Y. 620. Various questions were put to an expert witness, which were excluded. We are inclined to think they were admissible, but the conclusion already expressed renders it needless to discuss them at length. The opinion which defendant’s servant was allowed to express as to the cause of the rope breaking was not called for by. the question, and should have been stricken out. Its retention was error that, by itself, would require a reversal. Judgment reversed; new trial ordered; costs to abide event.