APPEAL from a judgment of the Supreme Court, entered February 19, 1953, in New York County, upon a verdict, rendered at a Trial Term (GREENBERG, J.), in favor of plaintiff and against defendant (third-party plaintiff) and upon a dismissal of the complaint of third-party plaintiff against third-party defendant.
William F. McNulty of counsel (Walter L. Glenney with him on the brief; Hampton & Mahoney, attorneys), for appellant.
Robert R. Bauman of counsel (Amadeus J. Ward, attorney), for respondent.
Jerome Teich for third-party defendant-respondent.
Plaintiff was employed as a laborer by Barlow-Meagher Co., Inc., in cleaning elevator shafts at Gimbels store, a hazardous employment covered by the Workmen's Compensation Law. He was injured in the course of that employment and this third-party tort action is maintained against defendant Otis Elevator Company based on negligence and that defendant has joined the Barlow-Meagher corporation under a cross complaint seeking liability over.
On the trial the jury returned a verdict of $50,000 against the defendant elevator company and rendered a special verdict finding fraud in the making of an indemnity agreement between defendants which led the Trial Term to grant judgment in favor of the third-party defendant dismissing the third-party complaint.
The case comes here on the appeal of the elevator company which argues that there is no basis in the record for the judgment which has been entered against it; and also that in the alternative, if the judgment against it stands, it should have recovery over against the third-party defendant, the plaintiff's employer. We first examine the record to test the sufficiency and the weight of the evidence to support the main verdict.
The elevator company had been installing elevators in the store. In the work of cleaning the shafts which plaintiff's employer Barlow-Meagher had undertaken to do, it was convenient and helpful to the operation to use the elevators in the shafts as platforms upon which to stand for the purpose of cleaning. Plaintiff's employer requested the elevator company for permission to use the uncompleted elevators for this purpose.
The request was in writing and sought 'possession and use' of elevators 'in an incomplete condition' prior to 'completion and inspection'. Barlow-Meagher further agreed to operate the elevators 'at our risk and expense'; to have a competent man to 'oil and clean' them; and to have a competent operator 'in the car'. The written instrument further assumed full liability and indemnity for accident and liability for accident when the elevators were thus being used.
While plaintiff was standing on the elevator here in question using its platform as a scaffold near the bottom of the shaft the elevator rose to the first floor and plaintiff fell off and was injured. Its rise has been described in the record variously as 'fast'; as 'at a fair rate of speed'; and as 'on slow speed'. A witness for plaintiff ...