LEXSEE 273 N.Y. 386
Edna B. Levine et al., Appellants, v. Russell Blaine Company, Respondent
[NO NUMBER IN ORIGINAL]
Court of Appeals of New York
273 N.Y. 386; 7 N.E.2d 673; 1937 N.Y. LEXIS 1218
March 9, 1937, Argued
March 23, 1937, Decided
PRIOR HISTORY: [***1]
Appeal from a judgment, entered January 9, 1936, upon
an order of the Appellate Division of the Supreme Court
in the first judicial department reversing, upon questions
of law, a judgment in favor of plaintiffs entered upon a
verdict and directing a dismissal of the complaint.
Levine v. Blaine Co., 246 App. Div. 717, reversed.
DISPOSITION:
Judgments reversed, etc.
CASE SUMMARY:
PROCEDURAL POSTURE: A trial court entered a
judgment for plaintiff tenant in her action against
defendant tenement owner for damages resulting from
the amputation of her arm. The Appellate Division of the
Supreme Court, First Judicial Department (New York)
reversed and dismissed the tenant's complaint. She
appealed.
OVERVIEW: The tenant cut her finger on a stiff piece
of fiber on a rope used to operate a dumbwaiter in the
owner's tenement. An infection developed which led the
amputation of her arm. The court said that, ordinarily,
the fitness of a rope for a particular use and possibility of
danger arising from its use depended upon its tensile
strength rather than the material from which it was made.
It agreed that the tenant failed to prove that a reasonable
man would have foreseen or guarded against the risk of
injury from bristles or slivers of the rope. However, the
trial court prevented the tenant from supplying the
necessary proof. It excluded evidence intended to show a
general custom or practice to equip dumbwaiters with
ropes that do not develop bristles, slivers, or splinters, as
well as evidence concerning the nature and qualities of
rope. Because a question of negligence had been
presented, the general usage or practice was competent to
show either ordinary care or the failure to exercise such
care. The trial court's exclusion of the tenant's evidence
unduly hampered the presentation of her case.
OUTCOME: The court reversed the judgment of the
appellate court and granted a new trial to the tenant.
CORE TERMS: rope, bristle, tenant, expert evidence,
dumbwaiter, slivers, exclusion of evidence, risk of
injury, general custom, customary use, stiff, infection,
landlord, custom, finger, arm
LexisNexis(R) Headnotes
Torts > Negligence > Proof of Negligence > Custom
[HN1] Ordinarily the fitness of a rope for a particular use
and possibility of danger arising in such use depends
upon its tensile strength rather than upon any other
qualities.
Torts > Negligence > Proof of Negligence > Custom
Torts > Negligence > Standards of Care > Reasonable
Care
Torts > Negligence > Duty > Duty Generally
[HN2] General usage or custom may be shown in order
to establish a standard of construction and equipment.
When a question of negligence is involved the general
usage or practice is competent to show either ordinary
care or the failure to exercise such care. One is not
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273 N.Y. 386, *; 7 N.E.2d 673, **;
1937 N.Y. LEXIS 1218, ***
obliged, however, to use the best methods or to have the
best equipment or the safest place, but only such as are
reasonably safe and appropriate for the business.
HEADNOTES:
Negligence -- landlord and tenant -- buildings -tenement houses -- cut on finger from bristle of
dumbwaiter rope -- infection causing loss of arm -action, tenant against landlord, to recover therefor -insufficiency of evidence to warrant recovery -erroneous exclusion of evidence as to general custom
and of expert evidence concerning qualities of rope.
SYLLABUS:
1. In an action to recover for personal injuries
alleged to have been sustained through the negligence of
the defendant, evidence that in a tenement house
maintained by it, the handrope used by tenants in
operating a dumbwaiter was dirty and rough, with stiff
bristles or slivers protruding therefrom, and that while a
tenant was using the rope a stiff piece of fibre cut her
finger, infection developed and amputation of the arm
followed, is insufficient [***2] to warrant recovery.
There is no proof that a reasonable man would have
foreseen or guarded against the risk of such an injury.
2. It was error, however, for the trial court to
exclude evidence to show a general custom or practice to
equip dumbwaiters with ropes which do not develop
bristles, slivers or splinters, and also to exclude expert
testimony to show why one kind of rope may cause a
foreseeable risk of injury which is customarily avoided
by use of rope of a different kind. Such evidence might
have completed the chain of proof.
COUNSEL:
Samuel M. Zuckerman and Mildred Zuckerman for
appellants. The defendant was negligent in providing
for the use of its tenants a rough and coarse handrope
which was entirely covered with stiff bristles, slivers,
splinters and other dangerous particles which protruded
through and extended from the surface layers thereof and
which was exposed and in no wise protected by any
cover or precautionary measure so that when touched it
would prevent any sliver, bristle or other part of the rope
from pricking or lacerating the skin and causing damage
and in permitting the dangerous and defective rope and
the condition it was in to exist for a period [***3] of
two months prior to the accident. (Sellers v. Dempsey,
26 App. Div. 22; Rosen v. Potterbaum, 151 App. Div.
713; Nadel v. Fichten, 34 App. Div. 188; Albert v.
Wachsman, 169 N. Y. Supp. 138; Harkin v. Crumbie, 14
Misc. Rep. 439; Toitman v. Roosin, 166 N. Y. Supp. 821;
Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Deane
v. Stegherr, 160 N. Y. Supp. 1113.) The accident was
foreseeable. (Hall v. N. Y. Tel. Co., 214 N. Y. 49;
Condran v. Park & Tilford, 213 N. Y. 341; Lowery v.
Manhattan Ry. Co., 99 N. Y. 158; Metallic Comp.
Casting Co. v. Fitchburg, 109 Mass. 277; Ramsey v.
Carolina-Tenn. Power Co., 143 S. E. Rep. 861; Hollidge
v. Duncan, 199 Mass. 121; Wagner v. International Ry.
Co., 232 N. Y. 176.) The trial court erred in excluding
expert testimony as to the general custom concerning the
use of handropes and all expert testimony concerning the
nature, texture and use of handropes. (Garthe v.
Ruppert, 264 N. Y. 290; Shannahan v. Empire
Engineering Corp., 204 N. Y. 543; Rich v. Pelham Hod
Elevating Co., 23 App. Div. 246; Jarvis v. [***4]
Brooklyn Elevated R. R. Co., 16 N. Y. Supp. 96; 133 N.
Y. 623; Jenks v. Thompson, 179 N. Y. 20.)
H. H. Brown and E. C. Sherwood for respondent.
There was no evidence from which negligence on the
defendant's part could be inferred. (Naffky v. Yosovitz,
268 N. Y. 118; Burke v. Witherbee, 98 N. Y. 562;
McKinney v. N. Y. Consolidated R. R. Co., 230 N. Y.
194; Paul v. Consolidated Fireworks Co., 212 N. Y. 117;
Vandenberg v. Reiss Construction Co., 263 N. Y. 500;
Glasier v. Town of Hebron, 131 N. Y. 447; Cleveland v.
New Jersey Steamboat Co., 125 N. Y. 299; Loftus v.
Union Ferry Co. of Brooklyn, 84 N. Y. 455; Demjanik v.
Kultau, 242 App. Div. 255; Polsey v. Waldorf-Astoria,
Inc., 220 App. Div. 613; Rowley v. Newburgh Light,
Heat & Power Co., 151 App. Div. 65; MacRae v.
Chelsea Fibre Mills, 145 App. Div. 588.) The trial court
did not err in excluding expert testimony concerning the
use of handropes. (Ryan v. Cortland Carriage Goods
Co., 133 App. Div. 467; Harley v. B. C. M. Co., 142 N.
Y. 31; Burke v. Witherbee, 98 N. Y. 562; Bennett v.
Long [***5] Island R. R. Co., 163 N. Y. 1; Sweeney
v. B. & J. Envelope Co., 101 N. Y. 520; Chaffee v. Erie
R. R. Co., 140 App. Div. 38; Paul v. Consolidated
Fireworks Co., 133 App. Div. 310; Cleary v. Dietz Co.,
222 N. Y. 126; Ruback v. McCleary, Wallin & Crouse,
220 N. Y. 188.)
JUDGES:
Crane, Ch. J., Lehman, O'Brien, Hubbs, Loughran,
Finch and Rippey, JJ., concur.
OPINIONBY:
PER CURIAM
OPINION:
[*388] [**673] In a tenement house, maintained
by the defendant, the hand rope used by the tenant in
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273 N.Y. 386, *; 7 N.E.2d 673, **;
1937 N.Y. LEXIS 1218, ***
operating a dumbwaiter was, according to the testimony,
dirty and rough. Stiff bristles or slivers protruded from
the rope. While the plaintiff Edna Levine was using the
rope, a stiff piece of fibre cut her finger. Infection
developed and amputation of the arm followed. The
Appellate Division has reversed a judgment rendered
against the defendant for the consequent damages and
has dismissed the complaint.
[HN1] Ordinarily the fitness of a rope for a
particular use and possibility of danger arising in such
use depends upon its tensile strength rather than upon
any other qualities. We are agreed that upon this record
the plaintiffs failed to prove that a reasonable [***6]
man would have foreseen or guarded against the risk of
injury to his tenants from bristles or slivers of the rope as
described by the witnesses, or even as shown by the part
which the plaintiffs offered in evidence. A more
doubtful question is whether the plaintiffs were
prevented from supplying the necessary [*389] proof
by the erroneous exclusion of evidence intended to show
a general custom or practice to equip dumbwaiters with
ropes which do not develop any bristles, slivers or
splinters, and of expert evidence concerning the nature
and qualities of rope.
We have said that [HN2] "General usage or custom
may be shown in order to establish a standard of
construction and equipment. When a question of
negligence is involved the general usage or practice is
competent to show either ordinary care or the failure to
exercise such care. (Shannahan v. Empire Engineering
Corp., 204 N. Y. 543.) One is not obliged, however, to
use the best methods or to have the best equipment or the
safest place, but only such as are reasonably safe and
appropriate for the business." (Garthe v. Ruppert, 264 N.
Y. 290, 296, opinion by Crane, J.)
A smoother rope might have advantages other
[***7] than greater safety. Its customary use might be
due to these advantages, and might not show a general
recognition that risk of injury would arise from use of a
rougher rope. Proof of such custom or practice would
then be insufficient, standing alone, to show negligence
on the part of an owner who made other choice; but the
chain of proof might, in this case, have been completed if
evidence of customary use of a different rope had been
supplemented by expert evidence explaining how and
why one kind of rope may cause a foreseeable risk of
injury [**674] which others customarily avoid by
choice of a rope of a different kind. Perhaps even if the
plaintiffs' proffered evidence had been admitted it would
still have been true that no reasonable inference could be
drawn that the defendant was negligent, but the rulings at
the trial unduly hampered the plaintiffs in the
presentation of their case.
The judgment of the Appellate Division and that of
the Trial Term should be reversed and a new trial
granted, with costs to abide the event.