| N.Y. App. Div. | Jun 26, 1944
Action to recover damages for personal injuries suffered by plaintiff, a structural iron worker, when the steel work upon which he was engaged collapsed. Judgment entered upon the verdict of a jury in favor of plaintiff reversed on the law, with costs, and the complaint dismissed on the law, with costs. The appellant has been east in damages on the theory that its servant, the operator of a crane owned by it, was guilty of negligence to the injury of the plaintiff. On the proof, the judgment may not be sustained. This is not a case where a general employee of one employer is lent to another; and a question of fact arises as to whose employee he was at the time of the accident. There is no evidence here that at the time of the accident the appellant was the master of the crane operator for whose negligence it may be held liable. The undisputed evidence shows that appellant rented a crane to a contractor at a fixed rate per day; that the appellant did not pay the operator’s wages; that the appellant did not have any choice, control or direction of the servant in-the performance of his work; and that the appellant’s will was not represented by the operator in the ultimate result of his work nor in any of its details. There is no evidence sufficient to raise an issue as to any of these elements. (See Ramsey v. New York Central R. R. Co., 269 N.Y. 219" date_filed="1935-11-20" court="NY" case_name="Ramsey v. New York Central R.R. Co.">269 N. Y. 219; Osborg v. Hoffman, 252 A.D. 587" date_filed="1937-12-10" court="N.Y. App. Div." case_name="Osborg v. Hoffman">252 App. Div. 587, affd. 280 N.Y. 523" date_filed="1939-02-21" court="NY" case_name="Osborg v. Hoffman">280 N. Y. 523.) The questions of fact have been considered and a new trial would be granted on the ground that the verdict is against the weight of the evidence if the complaint had not been dismissed as matter of law. Hagarty, Acting P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.