On appeal from the Essex County Circuit Court.
For the trustees of the Third Presbyterian Congregation in Newark, Charles Stockdell Gray.
For P. DeNicholas, Incorporated, Cohen & Klein.
For the respondent, Harley, Cox & Walburg (John J. Francis, of counsel).
The opinion of the court was delivered by
BODINE, J. Oscar Guensch, the plaintiff, recovered a verdict of $17,000 for personal injuries sustained January 10th, 1929, at Nos. 913-915 Broad street, Newark. The property was owned by the trustees of the Third Presbyterian Congregation, who had leased part of the premises occupied by the Rialto Restaurant to the Southern Candy Company, who sublet to P. DeNicholas, Incorporated, the other defendant. There was a sidewalk freight elevator which was used for the purpose of carrying objects to and from the cellar which
was used not only by the restaurant but also by the Rialto theatre, another tenant of the church congregation.
Guensch was employed by M. Mark & Son, dealers in delicatessen supplies, and was delivering merchandise to P. DeNicholas, Incorporated. He had obtained a check for the goods from Mr. DeNicholas pursuant to instructions from his employer. He was then told by DeNicholas, as he had been many times before, to go outside and open the iron sidewalk elevator doors when the elevator was sent up for the merchandise. Plaintiff presently opened one door and laid it on the sidewalk. The elevator platform was level with the sidewalk. He stepped on it and started to raise the other door when the elevator dropped down and he suffered injuries, both serious and permanent, of which he complained.
The elevator was about fifteen years old and was hand operated. The platform was nearly five feet square and there were the customary cables, gears, grooved drums and brakes designed for the proper operation thereof. The elevator travels a distance of nine or ten feet.
The proofs show that the elevator platform, as observed immediately after the accident by a number of witnesses, had dropped halfway down, was at an angle of forty-five degrees and one of the cables was off the drum. The Otis elevator people were immediately sent for to make repairs and their employe, when he arrived the next day, found the elevator platform in the same condition observed by the other witnesses, and also noticed that both cables were off the drums, which were not provided with guards.
An expert witness testified that slack cables caused the accident and can exist for a long time and are observable by the operator of such an elevator and are due to running the elevator below the proper landing stage, causing the cables to ultimately work off the drums when weight is applied.
On cross-examination, this witness testified: "Q. What caused it to drop, in your opinion? A. The cables being crossed in the position to come off the drum. Q. Would they come off the drum? A. They would. Q. Then what ...