| N.Y. App. Div. | Apr 20, 1906
1. At the close the learned trial judge ruled that the complaint alleged a cause of action under the Employers’ Liability Act (Laws of 1902, chap. 600) and charged the jury on that footing, viz., that if the plaintiff was hurt by the negligence of the superintendent he could recover if he was free from contributory negligence. The' complaint ’is now-, as on the trial, criticised as not stating a cause of action under the statute. It alleges that the plaintiff, being in the employ of the defendant, was directed by it to enter an elevator which it had constructed and had under its control, and use the same, arid that he did sothat it was negligently constructed in that the, cable by which it was suspended was negligently fastened to the top of the car; and that by reason thereof, and of defendant’s negligence in directing the plaintiff'to use the car, the said cable became unfastened and the car fell. In the last paragraph it alleges service of the notice required by the statute. The complaint is well drawn; it is. barren of allegations of evidence, and other unnecessary allegations. It is said that the complaint should in strictness have alleged that the plaintiff was directed by the superintendent to use the car, and that such superintendent did the other negligent acts, in order to be deemed under the statute. The learned.trial judge shared this view, but ruled nevertheless that the complaint could be eked out as sufficient. The pleader was ehtifely right in alleging that the negligence was that of the defendant. . To have alleged that the negligence was that of the superintendent would have been unscientific and not in due form. The negligence to be recovered for under the statute is that of the defendant, and n'ot of the superintendent or any agent or employee,,the very same as under the common law. The statute merely changes the common-law rule by making the negligence of the superintendent that of the master in 'the cases where at common .law, it would be that of a fellow-servant. The complaint should be for the negligence of the defendant in every case, now as always, and evidence that the superintendent did the negligent act makes out the allegation of the complaint. For a complaint to allege in any case that the defendant by his agent or servant did thus and so would not be scientific form. The proper form is that the defendant did it, and Whether he did it persorially or by an agent matters not; in either
2. The case was submitted to the jury to find whether the superintendent was negligent-in not having the cables babbitted in the shackle, and directing the plaintiff to use the elevator in that- condition. Assuming that .the plaintiff when he was sent away from the work of installation to work on the elevator in the other building informed the superintendent that the babbitting had not been done, and again later on, as he says, and the superintendent then continued the work, he could be found negligent in not babbitting the cables, for concededly he had the elevator suspended by the cables from the drum, and set running while the plaintiff was working at the other place, without having the babbitting done.
3. Whether the plaintiff was guilty of contributory negligence in using the elevator with the superintendent after he was brought back to it after his absence of about two weeks without looking to see if the babbitting had been done meanwhile was a question for the jury. He was taken away from the work before the babbitting had been done and the cables set in the drum and the elevator set running. The superintendent told him that he would go on with the work, and when he was brought back the elevator was suspended by the cables from the drum and running. Whether this was not sufficient to induce a prudent person to understand and believe that the babbitting had been done was a question of fact, not of law, for the babbitting should have been done before the elevator was suspended and set running.
4. It must be owned that the essential questions of fact were close. It was the testimony of the plaintiff against that of the superintendent. But the defendant’s side must have been seriously discredited in the minds of the jury by contesting that the superintendent was such. The plaintiff was put to much proof and was met with every objection that could be made in establishing that fact; and yet when the superintendent was put on the stand by the defendant he freely admitted he was superintendent, and there never was the slightest ground for denying it. In considering the weight and credibility of the evidence this justly counted for 'something, and
5. There is an exception by the defendant to- the charge of the trial judge in substance that the defendant owed the plaintiff the duty of reasonable care to see that the elevator was safe, for the pun pose for which he was using it at - the time of the accident. This, had reference to the un controverted fact that the superintendent did have the elevator suspended to its cables and set going during the plaintiff’s absence, and had it running for him to work on when, he came back. Construed with the whole charge, as it must be, and, not isolated and technically, it can only refer to the' 'negligence^' of the defendant ’through its superintendent, for that was the only thing litigated; and his negligence would under the statute- be that of the defendant and not of a fellow-servant. The statute took the superintendent, out of the category of fellow-servants. There. Was no claim of the negligence of any fellow-servant or of any one except the superintendent throughout the trial. The whole tenor of a trial has to be- considered in construing a charge. The charge was therefore not open to the construction that the defendant was made liable for the negligence- of fellow-servants.
6. The order granting the extra allowance can only be reviewed by an appeal therefrom. The order appears on the clerk’s minutes. That suffices without a formal order signed by the trial judge. Formerly all orders were entered by the clerk on his minutes, and . that .suffices' still, although it has been much lost sight of in the growing formality of recent years. But there is no appeal from that order.
The judgment and order appealed should be affirmed.
Present — Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ.
Judgment and order unanimously affirmed, with costs.