Appeal from Trial Term.
Action by Rosario Genovesia, administratrix, against the Pelham Operating Company and another. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendants appeal. Reversed, and new trial ordered.
Where a subcontractor installs and operates elevators in a building for raising building material, he owes to the employés of the contractor the duty to use reasonable care in the operation of the elevators not to injure them.
[114 N.Y.S. 647] Frank V. Johnson, for appellants.
William E. Weaver, for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.
The plaintiff's intestate was in the employ of the defendant George Vassar's Son & Co., who was engaged in constructing a building in the city of New York, and while thus employed he sustained injuries which resulted in his death. His administratrix served notice on the George Vassar's Son & Co. under the employer's liability act (chapter 600, p. 1748, Laws 1902), stating that the deceased was caused and permitted to fall from an open, unguarded, and unprotected elevator through an open, unguarded, and unprotected elevator shaft, hoist, or hatchway, caused by the elevator or hoist being started while the deceased was removing a pillar therefrom. No notice seems to have been served upon the Pelham Operating Company. The plaintiff subsequently commenced an action against both defendants, alleging that the accident which resulted in the death of the decedent was caused by the concurring negligence of the defendants, and [114 N.Y.S. 648] after a trial there resulted a verdict against both defendants, upon which judgment was entered, and from which each of the defendants separately appeal.
On the trial it appeared that the defendants the Vassar company, who were the employers of the decedent, were the contractors for the masonwork for a building, and at the time of the accident were constructing the walls, which had reached the ninth floor. To carry the building materials from the ground to the several floors at which it was needed, the defendant the Pelham Operating Company had, under a contract with the Vassar Company, installed elevators in the building, which were under the charge of one of the Pelham Company's engineers. There were two elevators running side by side through an opening left for that purpose; the cars taking up the whole of the opening with the exception of a space of about a foot between the two elevators. Under the contract the time of this engineer was kept by the employes of the Vassar Company, which was turned over to the Pelham Company, and the Pelham Company paid the engineer for the time that he was at work as appeared from these reports, and subsequently, under the contract, that money was paid to the Pelham Company by the Vassar Company. At the time of the accident but one of these elevators was in operation. These elevators consisted of open platforms upon which were placed wheelbarrows filled with material to be hoisted up; there being room for two wheelbarrows upon each elevator platform.
On the morning of February 21, 1908, about half past 8 o'clock, two wheelbarrows, one loaded with mortar and the other with brick, were placed upon this elevator in the cellar, and the elevator was then hoisted to the ninth floor. It was the decedent's duty to remove the wheelbarrows from the elevator and wheel them to the points at which the material was needed. After the elevator arrived at the ninth floor, the deceased stepped upon the elevator platform and took hold of the handle of the wheelbarrow to wheel it off the platform to the floor of the building. The wheel of the wheelbarrow was on the floor, but before he had time to step off the platform the elevator suddenly descended, upsetting the wheelbarrow, which, with its contents, went down the shaft. The elevator descended to about the fourth floor when it was suddenly stopped, and the deceased was thrown off the platform into the cellar, receiving injuries which caused his death. It appeared that a rope was provided which ran up the elevator shaft and was connected with a bell near the engine. One stroke of this bell indicated that the elevator was to be raised, and two strokes that it was to be lowered. The negligence charged against the defendants was a violation of Labor Law (Laws 1897, p. 468, c. 415), § 20, as amended by Laws 1899, p. 350, c. 192, in failing to maintain the guards required around the elevator shaft, and that the defendants were responsible for the negligence of the engineer in charge of the engine.
So far as the verdict is based upon a failure to guard the elevator shaft, it is quite apparent that such negligence, if it existed, was not the cause of the accident. The deceased did not fall down the elevator shaft from the floor of the building, but was on the elevator platform, and the accident was caused by the sudden descent of the elevator platform [114 N.Y.S. 649] before he had removed the wheelbarrow from it to the floor of the building. The object of the statute is to prevent workmen engaged in building operations from falling down elevator shafts from the various floors of buildings in course of construction, and not to prevent a person falling off an elevator platform, as a guard around the shaft could be no possible protection to a person upon the platform of the elevator. Section 20 of the labor law (chapter 415, p. 468, of the Laws of 1897), as amended by Laws 1899, p. 350, c. 192, provides that the contractor or owners of the building in course of construction shall cause the shaft or openings in each floor to be inclosed or fenced in on all sides by a barrier at least eight feet in height, except on two sides, which may be used for taking off and putting on materials, and these sides shall be guarded by an adjustable barrier not less than three nor more than four feet from the floor, and not less than two feet from the edge of such shaft or opening. And undoubtedly a failure to comply with this law would be evidence of negligence which would justify a recovery by any person injured because of a failure of the contractors or owners to comply with its provisions; but, where the failure to construct these guards or barriers have no relation to the accident, such failure to comply with the law imposes no liability upon the defendant, except the penalty provided by the statute itself. The verdict against the defendants therefore cannot be sustained because of a failure to erect these barriers.
The only other negligence of which there is any proof is the negligence of the engineer in starting this elevator without having received any signal that it was to be lowered. It is quite clear, I think, from the evidence, that the Vassar Company was not chargeable with negligence of this engineer. He had been in the employ of the Pelham Company for years, and was furnished by it in connection with the engine which operated the elevators, which it also supplied. The contract between the Pelham Company and the Vassar Company was not introduced in evidence, but sufficient appears to show that the Pelham Company furnished the engine and elevators and the engineer to operate them, for which it received payment from the Vassar Company. It is quite clear that this did not constitute the engineer the servant of the Vassar Company. From the evidence as it stood therefore we think that there was no negligence of the Vassar Company to justify a recovery, and the complaint as to it should have been dismissed.
There then remains the question as to whether the accident was caused by the negligence of the engineer in charge of the engine, and whether the Pelham Company was chargeable with such negligence. It is quite apparent that this accident was caused solely by the lowering of the elevator while the deceased was in the act of removing the materials upon it. So far as appears, these elevators were safe appliances for the purposes for which they were used, if carefully operated; but any sudden starting of the elevator while the workmen were engaged in removing materials from them was an act from which the occurrence of an accident was quite probable. The method adopted of giving the signal to move the elevators would seem to have been a safe one, if the engineer did not move the elevator until he received the proper signal, and the negligence of the engineer depended upon [114 N.Y.S. 650] his lowering the elevator without a signal. The engineer was called as a witness for the plaintiff, and on cross-examination testified that he received a signal of two bells before he started the elevator. There was evidence of two workmen in the cellar, whose duty it was to load this elevator, and who were waiting near the engine for it to come down, that no such signal was given.
When a corporation furnishes appliances of this kind for use in a building under a contract with those engaged in constructing it, it certainly owes a duty to the person with whom it has made the contract and to those in his employ to use reasonable care in the operation of an elevator to avoid injuring those for whose benefit the appliances are furnished, and, if negligent in such operation of the appliances, a cause of action arises in favor of a plaintiff injured by such negligence. In this case the negligence was that of the engineer who was operating the elevator. The engineer was an employe of the Pelham Company. His services had been furnished by the Pelham Company to operate its engine and elevators, and he certainly remained a servant of the Pelham Company, who had employed him and could discharge him, and who paid him his wages. The fact that the Vassar Company subsequently repaid the amount that the Pelham Company had paid for the services of its employe did not make the engineer the servant of the Vassar Company or change the relation between the Pelham Company and the engineer. He still remained an employe of the Pelham Company, and for his negligence the Pelham Company was responsible. The only question in the case was whether the engineer in the employ of the Pelham Company was guilty of negligence that was the proximate cause of the accident, and that depended entirely upon the question of whether the elevator was moved without the proper signal being given.
After all the testimony was in, and after the defendants had severally moved to dismiss the complaint, which motions had been denied, the court in its charge to the jury stated that it was claimed that the elevator was operated by the Pelham Operating Company, and that the elevator car was negligently started, without notice or warning of any kind to the deceased, that both defendants failed in their duty to deceased, and that their concurring negligence was the proximate cause of his death. Having thus fairly stated the question to the jury, the court then read section 20 of the labor law, which had nothing to do with the negligence of the engineer, and the violation of ...