98 N.Y.S. 90 | N.Y. App. Div. | 1906
This was an action to recover damages incurred by the alleged negligence of the defendant in operating a hod elevator which it had .installed for hire in a building in process of erection. ' The plaintiff/ was an employee of the contractor for the erection of the . building. The complaint having been dismissed it will be necessary to consider only the claims made by the-plaintiff to show that the dismissal-was error. We aré all agreed that the plaintiff, the employee of the builder, was not a -fellow-servant of the engineer of the defendant whose négligence is claimed to have caused the injuries complained of. The defendant furnished its elevator, boiler and engineer for an agreed price and there was. no common employer or common employment, -nor was the engineer the servant ad hoc of the builder. (Mills v. Thomas Elevator Co., 54 App. Div. 124; affd., 172 N. Y. 660.)
■ The plaintiff, was injured by the negligence Of the defendant’s servant while riding on an elevator built -and installed for the purpose primarily of carrying, building materials to the -different floors of the building in which plaintiff was at work. In view of the fact that "this1 elevator was installed for the purpose of carrying building ; materials and the further fact that there were on it none of the safety guards or appliances to be found on a passenger elevator, the presumption is that the plaintiff was riding on it without,-the consent of the defendant. -If stich was the case plaintiff cannot recover.* for defendant was under no duty to transport, him from the ground floor of the building to the' floors above, and if the engineer
It is not contended that plaintiff had defendant’s express- permission to go up on the elevator. Was such permission implied? The presumption is that it was not because this elevator was not built to carry passengers. The plaintiff has not introduced sufficient evidence to overcome this presumption. He says that defendant’s engineer consented to his going up on the elevator., This consent will not avail plaintiff unless the engineer in giving it can be said to have acted within the scope of his authority. He had not express authority to give this consent. Had he implied authority ? He was not a general agent, but an agent put there for the special purpose of running a freight elevator. He was impliedly authorized to do all acts necessary to the carrying out of this special duty. Was it necessary for the accomplishment of this object for the. engineer to carry plaintiff on the elevator? Plaintiff does not claim that he was talcing any materials up with him or to have been on .there for the purpose of keeping materials from falling off the elevator, or for the purpose of unloading the elevator when it got to the upper floors. He was on there simply for the purpose of getting to the sixth floor of the building. Clearly, carrying him on the elevator was in no way necessary for the accomplishment of the object which the engineer was intended to carry out.
Appellant contends that the engineer was put here by the defendant for the purpose of aiding in. the quick construction of this building, and as carrying the plaintiff on the elevator enabled him ■ to get more quickly to his work the engineer was acting within the scope of his authority. The answer to this argument is that the engineer was not put there for the purpose of doing everything that would aid in the quick construction of the building, simply those things in the line of his duties as an engineer of a freight elevator.
Appellant contends that, the contract being silent as to whether or not passengers should ride on the elevator, the contract was subject to the known usages of the business and that it was shown that
. The- only case cited" by appellant. which approaches an authority in favor of his contention is Stringham v. Stewart (100 N. Y. 516). That was a case in which plaintiff was injured while, riding on a grain elevator. It appeared in, evidence that plaintiff was in-the employ of defendant, who owned the elevator, and that defendant’s superintendent had directed the servants employed in moving grain to. ride on the elevator while doing their work» It also appeared that oh the trip in which plaintiff Was injured he put on a load - of grain and went up- with it fo'r -the purpose of taking.it off the elevator. In so doing lie was working for the benefit of- the defendant. . These facts' are sufficient to" show that the case is not an authority in point. In thé case atibar the plaintiff was not directed' by-the-engineer-of the defendant to go up on the elevator, and in going up'on the elevator he could not be said to be in anyway acting "for the benefit of defendant, whose servant, he- was not.
"In Eaton v. D. L. & W. R. R. Co. (57 N. Y. 382) it was held that conductors of freight trains cannot create any liability on the
“Negligence is an omission of care and caution in what we do. But the duty to be actively cautious and vigilant is relative, and where that duty has no existence between particular parties there can be no such thing' as negligence in the legal sense of the term. The plaintiff was in no position to complain - of the defendants or their servants. The frame and dump the intestate got upon was not a vehicle for his carriage, but an instrument of labor, a mere implement furnished by the defendants to their servants, as they might have provided a man with a basket or barrow, or a mule with panniers, to take out the refuse, as in former times was the custom in doing such work. * * * The plaintiff had a right to be in the tunnel for its inspection. The contract put the defendants under no obligation to carry him into the tunnel, nor by it did-he acquire any right to be upon the car. Nor did he acquire that right through any consent or act or acquiescence on the part of the defendants. All the. witnesses agree that no permission was given by the defend
The judgment should be affirmed, with costs.
O’Brien, P. J., Patterson, Ingraham and Laughlin,, JJ., concurred. ■ '
Judgment affirmed^ with costs. Order filed.