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urial was, and now is, that proof of the breaking of the cables and of the fact of the elevator falling was sufficient to throw upon the defendant the obligation of explaining the occurrence and the cause of the fall in such a way as to exonerate it from liability.

It is unnecessary in this case to determine whether the maxim res ipsa loquitur applies; for, if it does not, although the proof on the part of the plaintiff may have been insufficient, when his case in chief was rested, to entitle him to a verdict, yet before the whole case was closed there was evidence introduced which required the submission of the issues to the jury for determination. The defendant gave evidence to show that the cause of the falling of the elevator was not the breaking of a cable, and satisfactorily proved that the mere fact of one of the four cables breaking (the others holding fast) would not be sufficient to cause the fall; that, if one cable alone broke, the elevator would merely sag a distance of some six inches at the corner at which the cable parted. But the defendant's evidence went further, and the attempt was made to show that the real cause of the falling of the elevator was the breaking of the gear wheel, and that such breakage was the result of there being in that wheel what is called a “blowhole,”—a hidden defect in the metal of which the wheel was composed,-and which could not possibly be discovered by any known process of inspection or examination. If that were true, the defendant would not be liable; but, in addition to that proof, it was brought out by the plaintiff that the gear wheel was defective in another respect, and one which could readily have been detected by inspection, namely, that there was a crack in the wheel observable from the surface of the wheel; that it was an old crack; that it was of such a character as to affect the strength of the wheel; and the contention was made that, assuming the fall to have been occasioned by the condition of this gear wheel, it was for the jury to say whether its breaking was not caused by the crack as well as by the existence of the blowhole. The elevator had been in use for some ni years. The wheel was produced in court on the trial of the action, and was there for the inspection of witnesses, the jury, and the court. The existence of the crack was patent, and indications upon the wheel itself gave evidence that it was not of recent origin. There was enough before the jury to enable them to pass upon the issue as to the cause of the accident being the unsafe condition of the wheel. The attitude in which the case stood at the time of its submission to the jury was this: The defendant claimed that it had exonerated itself from liability by showing the existence of this hidden and undiscoverable defect to which the fall of the elevator could be attributed. On the other hand, the plaintiff claimed that, even if the cause of the falling of the elevator was not the breaking of the cable, but the breaking and falling of the wheel, he had shown a plain defect in the wheel, readily discoverable, to which the breakage could be assigned; and thereupon the court left to the jury certain specific questions of fact : "(I) Did the elevator fall solely because of the existence of the blowhole in the hub of the bevel gear wheel?” to which the jury answered, "No." "(2) If no, were there other defects, which reasonable inspecand 114 New York State Reporter tion would have disclosed, which produced the accident? Answer. Yes. (3) If yea, was there such reasonable inspection ? Answer. No."

It is unnecessary to consider any of the questions of law which have been discussed on this appeal. It is conceded that, if the existence of the blowhole was the sole cause of the accident, the defendant is not liable. It must further be conceded, as a general proposition, that where an appliance or machine obviously safe has been in daily use for a long time, and has uniformly proven adequate and safe, its use may be continued without the imputation of imprudence or carelessness. But if the crack in this gear wheel was a defect which could have been detected by inspection, and was the proximate cause of the accident, then the elevator, with its appurtenances, was not an obviously safe apparatus ; and in this case the duty of inspection was cast upon the defendant. Here was a lift or elevator used for raising and lowering street cars, weighing some tons. Men had to go upon it to push those cars from it onto the tracks on the floors of the building in which the cars were to be stored. It required, from time to time, repairs, and certain repairs were put upon it. It had fallen before. Indeed, the defendant undertook, through its servants, the work of inspection; but the jury found that there was evidence authorizing the finding that there was no reasonable inspection. The existence of the crack could readily have been detected by the use of a hammer. One of the defendant's witnesses testified that he was in the habit every week of going around the elevator, and looking at it, and going upon a ladder and obserying the wheels and the drums and oiling the machinery; but he did not use the hammer test on this wheel during more than a year before the accident occurred from which the plaintiff suffered. That was, as the jury properly found, inadequate inspection. The whole subject was one for the determination of the jury upon the issues of fact as they were submitted by the court.

There are no exceptions requiring consideration, unless it be that to the refusal of the trial judge to charge the thirtieth request of the defendant. There was some evidence given with respect to the absence of safety clutches or appliances upon this elevator, and the defendant claimed that the construction of the apparatus was such that it could be operated in safety without those appurtenances which are generally called “safety appliances.". The court was asked to charge the jury that the omission of "other safety appliances or clutches from a freight elevator, which was not used or constructed for carrying passengers, from riding on which the railway company excluded its servants, and upon which servants had no reason to be, does not establish negligence on the part of the railway company.” This request was properly refused, for it contains elements which in no way enter into the case. This was not an elevator from riding on which the railway company's servants were excluded, or upon which its servants “had no reason to be.” On the contrary, servants of the railway company were required to be on the elevator, for it is proven that the way of removing the cars from the elevator was by the company's servants going upon the elevator for that purpose.

The judgment and order appealed from should be affirmed, with costs. All concur.

PEOPLE V. TIMMERMAN. (Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. ADULTERATED Milk-CONSTRUCTION OF SANITARY CODE.

New York City Sanitary Code, $ 63, providing that no adulterated milk "sball be brought into, held, kept, or offered for sale at any place in the

city," does not probibit the mere possession thereof. Appeal from court of special sessions, New York county. John Timmerman was convicted of violation of the Sanitary Code of New York City, in having in his possession impure milk, and appeals. Reversed.

The complaint charged the defendant with having unlawfully kept, had, and offered for sale on the 18th day of April, 1902, on a wagon at West 130th street milk station, N. Y. C. R. R., in the city of New York, adulterated milk, in violation of the provisions of section 63 of the sanitary code of the department of health of New York City. A warrant being issued, the defendant was duly examined before the magistrate, and pleaded not guilty, but was held on the charge, and thereafter tried before the court of special sessions. The record of the testimony taken upon the trial discloses that there was no controversy or conflict as to the facts. The inspector testified that he took a sample of milk from one of the cans upon the wagon, which was then being loaded by the driver with milk which had just arrived by train from the country. He was told by the driver, upon inquiry, that the milk came from the creamery of McDermott-Bulger Dairy Company, and the wagon was marked with that name, and the cans marked "M. D. B.” The inspector further stated that the driver told him he was taking the milk to the stables. A chemist testified that he analyzed the sample of milk given him by the inspector, and there was an adulteration of at least 5 per cent. of water. The inspector, recalled, testified that there were 1,600 quarts of milk on the wagon, but he would not swear that the particular can examined was sold or exposed for sale. Thereupon the people rested. The defendant testified that he was driver of the wagon, and that after the inspector opened one of the sealed cans, and took a sample, and gave him one. he continued to load up the wagon, and told the inspector he was going back to the stables, at 144th street; that when he arrived there he waited for the foreman to test the milk, and he took about 55 cans out that morning to sell; that the main depot of the company is at 38th street, between 10th and 11th avenues, and he “brings the milk from the depot down to the stables, and then it is tested." The foreman testified that the driver told him of the opening of the can by the inspector, and he sent that can to the agent, and it was never sold or exposed for sale, and that he tested all the cans, and saw one other which he concluded was not fit for sale, and sput down to the agent, also. At the close of all the evidence the court said: “We have reached the conclusion that we can try him under this provision of the sanitary code (section 63). The court finds the defendant guilty of having the milk in his possession.” The sentence of the court was that the defendant should pay a fine of $100, and, in default, stand committed to the city prison for 30 days. From the judgment of conviction thus entered, the defendant appeals.


and 114 New York State Reporter James E. Smith, for appellant. Frederick W. Stelle, for respondent.






O'BRIEN, J. Section 63 of the sanitary code of the board of health of the department of health of the city of New York provides as follows:

"Sec. 63. No milk which has been watered, adulterated, reduced or changed in any respect by the addition of water or other substance or by the removal of cream, shall be brought into, held, kept, or offered for sale at any place in the city of New York, nor shall any one keep, have, or offer for sale in the said city any such milk. The term 'adulterated' when so used in this section means," etc.

In framing the complaint, under this section, against the defendant, it was specified that, on the date stated, on a wagon at the West I 30th street milk station, in the city of New York,—the said wagon being a place where milk "was then kept for sale,-one John Timmerman did then and there unlawfully have, keep, and offer for sale 40 quarts of impure and unwholesome milk,

and that such impure

milk was then and there, by the said John Timmerinan, unlawfully held, kept, and offered for sale.” The evidence fell far short of supporting the complaint, in that it failed to show that the defendant had the milk for sale, and this was the conclusion of the special sessions; its finding being, not that the milk in the possession of the defendant was then held or offered for sale, but, as pointed out, that the evidence sustained the view (about which there was no dispute) that he had 40 quarts of impure milk in his possession, and upon this ground it was held that he had violated section 63 of the sanitary code. In answer to the appellant's claim that the board of health may not pass and enforce such a provision, it is sufficient to say that the legislature, in the exercise of its constitutional authority, may confer upon boards of health power to enact sanitary ordinances, having the force of law, in the districts over which their jurisdiction extends. Polinsky v. People, 73 N. Y. 65. Nor is there force in the defendant's further contention that section 63 of the sanitary code was repealed by section 1172 of the charter of the city of New York, and that the state law (section 22, Agricultural Law) is alone controlling upon this subject. The provision of the sanitary code is not inconsistent with the statute, but is, in its nature, merely a more rigorous and additional prohibition or requirement, valid and binding within the city of New York.

The single question presented, therefore, for our consideration, is whether the mere possession of adulterated milk in the city of New York is an offense punishable under section 63 of the sanitary code. In addition to this section, which has for many years been in force, and was originally adopted in 1876, and known as "Section 1186 of the Sanitary Code,” we have the prohibitions of the general state law embodied in section 22 of the agricultural law, to which we have already referred. This latter provision has frequently been construed, but therein nothing is said about mere possession of adulterated milk; nor is there anything therein, or in any other law of the state, to the effect that such possession, alone, is a crime. And whether section 63 of the sanitary code is broad enough to make it a crime has never, so far as we know, been passed upon. It is, however, certainly a strong argument in favor of the construction that mere possession does not, under the ordinance, constitute a crime, to find that during the long period that has elapsed since the section was enacted, and with all the zeal displayed by the department of health to enforce the sanitary code, it has never before been urged that, apart from any intention to sell, the mere possession of adulterated milk was a crime. And here, as pointed out, the complaint did not attempt to charge the defendant simply with possession, but alleged that he "held, kept, and offered for sale" impure milk. The question for our consideration is whether' section 63 is susceptible of the construction that thereby the bringing in of adulterated milk for any purpose is forbidden, and the possession of such milk is made a crime. The language employed is that such impure milk shall not "be brought into, held, kept or offered for sale”; and thus it will be seen that the purpose or intent for which the adulterated milk is brought in, held, kept, or offered, is an essential element of the offense. Some force is lent to this construction from the language in the opinion in the case to which we have already referred, of Polinsky v. People, supra, where, speaking of the difference between the agricultural law and the ordinance, it is said (73 N. Y. 70):

"The third count (of the indictment] charges an offense not embraced in the statute of 1862, but which is embraced in the ordinance, viz., bringing adulterated milk into the city of New York for sale. The statute relates only to selling or exposing impure or adulterated milk for sale. The ordinance may be violated, and the offense of bringing into the city impure milk or adulterated milk for sale may be complete, without either selling or exposing it for sale."

Although not authoritative, because the question was not there presented, we have here an argument for the construction which we think should in this case prevail,—that in the ordinance, as well as in the statute, the intent or purpose for which the milk was brought into and held within the city, namely, for sale, constituted the gravamen of the offense. In other words, the intention to sell such milk, or to have it for sale, was, as stated, an essential element of the offense; and mere possession, alone, apart from any such intent or purpose, was not inhibited. People v. Wright, 19 Misc. Rep. 135, 43 N. Y. Supp. 290; Same v. Kellina, 23 Misc. Rep. 134, 50 X Y. Supp. 653; Same v. McDermott-Bulger Dairy Co., 38 Misc. Rep. 265, 77 N. Y: Supp. 888.

If it were the design of those who formulated the ordinance to make possession alone, or the bringing into the city alone, of adulterated milk, regardless of whether it was or was not intended for sale, a crime, then language is easily susceptible of being so molded as to express that design. The ordinance, being a penal one, is to be strictly construed; and it is sufficient to say that the language employed is so doubtful and inconclusive that we would not be justified, after the lapse of all these years, in giving a broader scope

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