114 N.Y.S. 646 | N.Y. App. Div. | 1909
The plaintiff’s intestate was in the employ of the defendant George Yassar’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 George. Yassar’s Son & Go. under the Employers’ Liability Act (Laws of 1902, chap. 600) 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 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 Yassar Company, who were the employers of the decedent, were the contractors for the mason work 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 Yassar Company, installed elevators in the building which were under the charge of one of the Pelhatn 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 employees of the Yassar 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 Yassar 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
So far ás 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 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 (as amd., supra), provides that the contractors or owners of the building in course of construction shall cause' the
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 Yassar Company was not chargeable with the 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 Yassar 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 Yassar Company.. It is quite clear that this did not constitute the engineer the servant of the Yassar Company. From the evidence as it stood, therefore, we think that there was no negligence of the Yassar 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
; Aftfer 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,
I think, therefore, that the court below should have dismissed the complaint against the Vassar Company and the judgment against it should be reversed on that ground ; that the judgment and order denying a motion for a new trial as against the Pelham Operating Company should be reversed for errors in the charge above stated and a new trial ordered, with costs to abide the event.
Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment and order reversed, new trial ordered,' costs to abide event.