Levine v. Russell Blaine Co.

273 N.Y. 386, 7 N.E.2d 673 (1937)



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 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. 


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. In a case for damages resulting from the amputation of her arm, the trial court entered a judgment for the tenant against the tenement owner. On appeal, the Appellate Division of the Supreme Court reversed and dismissed the tenant's complaint. The tenant appealed the case.


Was it proper to dismiss a complaint for damages where an injured plaintiff was barred from presenting evidence of general usage and practice in a safety matter?




The court reversed the judgment of the appellate court and granted a new trial to the tenant. 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.

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