Hubener v. Heide

62 A.D. 368, 70 N.Y.S. 1115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinion

Laughlin, J.:

We think that the learned trial justice erred'in deciding that the-defendant was liable as matter of law. The evidence tended to-show that the. elevator had been constructed and' installed by a-reputable builder and that it was on inspection found to be in good order and- repair. The man who operated the elevator was experienced and his testimony tended to show that he operated it carefully. His negligence is not conclusively established by the opinion of defendant’s engineer that the elevator could, with cafe, be operated safely. The defendant was not an insurer of the safety of those, using the elevator, nor was he obliged to use the greatest degree of care that human foresight and ingenuity could devise to providp against accidents; The rule as to the liability of common carriers of passéngers does not apply. Defendant was only liable for the omission of ordinary or reasonable care and caution in the purchase,installation, inspection and operation of the elevator. (Griffen v. Manice, 166 N. Y. 188.)

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.