dissent">Barrett, J. (dissenting):

The cable by which the car was raised and lowered was connected with a kingbolt, which was fastened to a lever. When the cable-exerted its usual strain, one end of the lever was elevated. If, however, the cable broke, or for any other reason became slack, a weight called a counterpoise acted upon and elevated the other end of the lever, and this action resulted in placing pieces of metal, called eccentrics, under the corners of the car and stopping its fall. It is practically conceded (and at least the jury might have found) that this accident occurred because the counterpoise failed to overcome the resistance of the slack cable above the car and raise the other end of the lever so as to bring the eccentrics into play. A little consideration will show that, should the car become jammed near the top of the hatch, the slack would accumulate near the drum and outside of the hatch, while should the jamming occur near the bottom the slack would accumulate inside the hatch, right above the car. Doubtless in the former case the counterpoise would have to overcome a greater resistance than in the latter. This case was *565of the former kind, and it is contended that the clutch was not there designed to work.

The presiding justice, however, intimates that it was at least a question for the jury whether the defendants were not bound to provide a clutch which would act in any case where the cable should become slack; that is, whether the slack should accumulate inside or outside the hatch. This is manifestly correct. It would be strange, indeed, to hold that the defendants were under a liability to provide a clutch which would work in case of" an accident near the bottom of the hatch, where the injury might be slight; but that where the car should get jammed near the top, and death would quite certainly result from the fall, they were under no such liability.

This point being established, it seems to me quite clear that the judgment should be reversed. The defendants do not contend that the clutch was designed to act in the case of an accident like the present, and that, so far as they knew, or had reason to know, it was in good working order to protect against such.an accident. On the contrary, they distinctly contend that they were under no liability to furnish a clutch which would work in an accident like the present, and they offer the evidence of an employee of the manufacturer and others to show that this particular clutch was not designed to act in such a case. Under such circumstances the facts as to the inspection seem immaterial. There was a radical defect in the clutch itself which no inspection could remedy. The evidence shows merely that the clutch was to a certain extent overhauled and repaired, and that when the car was lifted a few feet from the ground and dropped^ the clutch worked. But if the counterpoise was not designed to work when the slack accumulated outside the shaft, repairing was of no use, and the test was applied only at the bottom of the shaft, when the slack would be inside of it. In short, the defendants simply made a test in conformity with their present erroneous theory as to. what the clutch should be required to do, and found that test satisfactory.

I think the judgment should be reversed and a new trial ordered.

Judgment affirmed, with costs.

Citation profile

How this case has been treated — in progress