Elizabeth C. Connor, as Administratrix, etc., of George Connor, Deceased, Respondent, v. Henry C. F. Koch and Others, Appellants, Impleaded with the General Fire Extinguisher Company

Elizabeth C. Connor, as Administratrix, etc., of George Connor, Deceased, Respondent, v. Henry C. F. Koch and Others, Appellants, Impleaded with the General Fire Extinguisher Company. Negligence — injury to a person on the sidewalk from a bundle of iron pipes falling from an devalor through the window of a building. In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendants Koch and others entered into a contract with the defendant, the General Fire Extinguisher Company, for the equipment by the latter of a building occupied by them with fire extinguishing apparatus, the contract providing “that space for materials and facilities for the prosecution of the work shall be accorded on the premises; ” that the fire extinguisher company employed a trucking firm to deliver the pipe to be used in the performance of the contract at the building, and that, on the day of the accident, the trucking firm delivered a load of pipe intended for the upper or sixth floor of the building, and that the foreman of the extinguisher company and two of its employees assisted the employees of the truckmen in unloading the pipe and placing it upon an elevator, the exclusive use of which had been given to the extinguisher company by the defendants Koch and others for that day. Some of the pipe projected three or four feet above the top of the elevator, thus ' preventing it from being brought to a level with the upper or sixth floor of the building. It was, therefore, stopped about three feet below the level of that floor, and, after it had remained there a short time preparatory to being unloaded, one of the bundles of shorter pipe in some manner fell from the elevator through the fifth story window, the upper part of which was unguarded, striking and killing the intestate, an employee of the truckmen, who was standing on the walk. The elevator was operated by one Baumann,-who was in the general employ of the defendants Koch and others, but it appeared that the only authority which he assumed to exercise over the loading of the elevator was to «¿ee that the load was properly balanced. An employee of the fire extinguisher company superintended the placing of the long pipes in the elevator, but the evidence was conflicting as to whether such employee superintended the placing of the bundles of short pipe in the elevator, or whether they were left as placed by the men who brought them from the truck. The jury exonerated the fire extinguisher company and rendered a verdict, upon which judgment was entered against the defendants Koch and others. Held, that the judgment should be reversed as to the defendants Koch and others, because it was against the weight of evidence. It was considered by Van Brunt, P. J., and Laughlin, J., that it should be reversed, also, Mrst, because the court erred in allowing the jury to infer negligence on the part of Baumann, from the fact that he stopped the elevator three feet below the upper floor; Second, because the court erred in excluding evidence offered by the defendants Koch and others, to show that Baumann had for the day in question become detached from their employment and had entered the employ of the fire extinguisher company or of its foreman; Third, because the court excluded1 evidence offered by the defendants Koch and others, to show that the employees of the extinguisher company who had charge of loading the elevator were under the influence of liquor; Also, that the rule, that a person who, while lawfully travelings public highway is injured by something falling from an adjacent building, may be presumed to be. free from negligence and that" the" person having charge of the article which falls is prima facie guilty of negligence, did not necessarily apply to this case, in which there was evidence tending to. show that the decedent assisted in loading the elevator and Was consequently in a position to observe the manner in which it was loaded. Patterson and O’Brien, JJ., dissented. Appeal by the defendants,.Henry G. F. Koch and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 8th day of February, 1901, upon the verdict of a- jury for $6,000, and also from an order entered in said clerk’s office on the 21st day of February, 1901, denying said defendants’ motion for a new trial made upon the minutes. The action is brought to recover for the death of George Connor, which, it is alleged, was caused through the negligence of the appellants and of the General Fire Extinguisher Company, which was sued jointly with them. On the Ith day of March, 1900, appellants were in possession and occupancy of the building known as Hos. 132 to 140, inclusive, West One Hundred and Twenty-fifth street, in the borough of Manhattan. The nature of their business is not shown. It appears, however, that they entered into a contract with the General Fire Extinguisher Company, a domestic corporation, for the purpose of equipping said building with fire extinguishing apparatus. The iron, .pipe to be used by the General Fire Extinguisher Company in the performance of this contract "was consigned to it over the Philadelphia and Reading railroad, and it sent thé bill of lading to James Reilly & -Sons, truckmen, with directions to deliver the pipe at these premises. Decedent and one Walsh were in the employ of the truckmen, and their instructions were to deliver the pipe on the sidewalk as convenient as possible to the door where it was to be carried into the building. The building extended through to One Hundred and Twenty-fourth street. The pipe was unloaded from One Hundred and Twenty-fourth street opposite a freight elevator in the rear of the building. It was a six-story building and the elevator was located at the southwesterly corner. On the south the elevator opened directly onto the sidewalk. There was a lattice iron gate ■ at this side which it was customary to close at the noon hour when carrying passengers, but not when carrying freight. The elevator was also open on the east, but the north and west sides were closed. The operating cables were in the southeast corner. By the contract between the appellants and the General Fire Extinguisher Company it was agreed “ that space for materials and facilities for the prosecution of the work shall be accorded on the premises.” One Baumann had been employed for several years to operate this elevator. On the day in question the foreman of the fire extinguisher company had a conversation with him which he communicated to his employers, as a result of which he was directed by one of the appellants to give the General Fire Extinguisher Company the exclusive use of the elevator that day and not to carry other freight or passengers. On former occasions the extinguisher people had been allowed the use of the elevator at any time, but not the exclusive use, and the elevator man had run the elevator during noon hours and other hours in carrying their freight. Appellants offered to show that on such occasions the fire extinguisher company paid the elevator man for the extra time and for all his services in carrying their freight, both on the day in question and at all former times. This evidence was excluded and the appellants excepted. Evidence was offered tending to show that the extinguisher company through the request of its foreman was given the exclusive use of the elevator on the day of the accident, and that Baumann was given permission to run the elevator for the company under an understanding with the foreman that his services were to be paid by it and that they were in fact subsequently paid by the foreman, although it was conceded appellants made no deduction from his compensation on that account. This evidence was excluded and appellants excepted. The’elevatpr was operated for the use of the' extinguisher company exclusively that day and the accident occurred about four-thirty p. m. The foreman-and two other employees of the extinguisher company were engaged with the truckmen in unloading the pipe and carrying it to the elevator. The pipe varied from an inch to six inches in diameter and that of small diameter was tied in bundles. Some of the pipes were three or four feet too long to go in the elevator. The screen forming the top of the elevator was raised and tied to the cable in the center, and the long pipes were placed resting on the floor of the elevator, the upper ends extending through the top: One Hamm, also an employee of the fire extinguisher company, was jdacing and supervising the placing of these long pipes in the elevator. Those engaged in unloading the truck usually placed the short bundles of pipe in the elevator, one end resting on the floor and the other against the further side of the elevator and slanting at an angle of about forty-five degrees. At times shorter bundles were placed horizontally on the floor of the elevator. There is a conflict. in the. evidence as to whether Hamm supervised the placing of these short bundles in the elevator, or whether they were left as placed by the men who brought them from the truck. This was the second or third load of pipe brought by decedent and Walsh. There was evidence that each of them had delivered pipe to Hamm in the elevator and had placed •pipe in the elevator, but the witnesses could' not recollect who put the shorter bundles of pipe in place on the elevator at the time of the accident. The load of pipe on the elevator at the time of the accident was destined for the upper floor. On account of some of the pipe projecting three or four feet above the top of the elevator the floor of the elevator could not be brought to the level of the upper floor of the building, and it was stopped about three feet below that point. The lower part of each window opposite the elevator was protected on the side of the elevator by a guard screen, but in the position in which the elevator' was stopped1 its floor was above the guard screen of the window on the fifth floor, leaving no protection between the lower part of the elevator and the upper part of the fifth-story window. Baumann remained in the elevator after it stopped, and Hamm who had ridden up with him, placed one hand on a chain stretched across the east side, drew himself up and stepped out on the sixth floor preparatory to unloading. Within a few seconds thereafter, according to some of the evidence, and according to other testimony several seconds later, one of the shorter bundles of pipe in some manner fell off the elevator and through the rear fifth-story window at the side, striking and killing decedent who was standing on the walk talking with the foreman. There is no other evidence showing how -the accident occurred or what caused it. The appellants offered to show that at the time of the accident the employees of the extinguisher company were under the influence of liquor. The evidence was excluded and appellants excepted. At the close of the plaintiff’s case and at the close of all the evidence, counsel for appellants moved for a dismissal of the complaint on the ground that no neglect on their part was shown and that Baumann was in the 'special employment of the General Fire Extinguisher Company. Each motion was denied, and appellants duly excepted. The jury exonerated the latter company. The court charged the jury, as matter of law, that decedent was free from negligence, to which ruling appellants excepted. The court also instructed the jury: “It may be inferred also from the proofs that there was negligence in the employee Baumann of Koch & Company in stopping this lift three feet below the flopr of the sixth story of the building where the floor of the lift was adjacent to the unprotected upper sash of the fifth floor of the building. You may find negligence from the fact, also, in regard to the use of the elevator from the non-user of the gate which went across one of the open sides ; and it is from this evidence, gentlemen of the jury, that you are to fix this liability either upon one or both of these defendants.” The appellants duly excepted to each of the two propositions contained in this part of the charge. The court also instructed the jury: “ The jury is instructed that there is no proof in this case that the elevator man, Baumann, did or omitted anything in the moving of his elevator on the trip preceding the accident or in handling the elevator when near the sixth floor, just before the accident, which has been shown by any legal proof to have brought about the accident.” The court was requested in behalf of the appellants to charge that “ if the jury believe that the elevator was being used on the day of the accident exclusively by the servants of the General Fire Extinguisher Company, though the same was in charge of the elevator man employed by the defendants Koch as to its operation, such eler vator man was the servant of the General Fire Extinguisher Company and not the servant of the defendants Koch in respect to the trips made by him for the General Fire Extinguisher Company.” Also that “ the jury is instructed that at the time of this accident * * * the elevator man Baumann, while in the general employ of the defendants Koch, was, so far as the work then in progress was concerned, in the employ of the General Fire Extinguisher Company, and .the defendants Koch are not liable for any negligence of his while engaged in such work.” The court declined to charge each of these requests and appellants excepted. H. Snowden Marshall, for the appellants. Frederick L.. Taylor, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: There are four grounds upon which the judgment should be reversed, and they will be considered separately : First. In view of the last proposition charged, quoted in the statement of facts, the evidence on which the jury were permitted to infer negligence on the part of Baumann was slight indeed. It appeared that in the main his back was turned to the loading of the elevator and his attention was drawn to holding the elevator in place and to prevent its settling toward the basement while being-loaded. The only authority he assumed to exercise over the loading was to see that the load was properly balanced. It was not shown that, from the position he occupied, he was able to observe how all the pipe or bundles of pipe were placed. But, assuming that there was sufficient evidence of his negligence to take the case to the jury, if his negligence was chargeable to appellants, we think the verdict was against the weight of evidence and should be set aside. Second. We also think the court erred in allowing the jury to infer that he was negligent in stopping the elevator three feet below the upper floor. Manifestly it would have been negligence on his part to have attempted to have brought the elevator to-a level with the sixth floor, for in so doing the ends of the long pipe projecting above the hood of the elevator would have come in contact with the upper part of the shaft or the fixed machinery of the elevator. Third. The court also erred in excluding the evidence offered by appellants to show that Baumann had, for the day in question, become detached from their employment and entered the employ of the fire extinguisher company, or of its foreman, Murphy. Under their contract with the General Fire Extinguisher Company appellants were under no obligation to carry this pipe in their elevator, nor was it their duty when they consented to allow the use of their elevator for that purpose to furnish a man to operate it. If the evidence excluded had been admitted, it might have been shown not only that Baumann’s services for that day were paid by Murphy or the General Fire Extinguisher Company, but that he performed no services for appellants, and that at the request of Murphy, or the company he represented, Baumann was permitted and instructed by appellants to act upon the orders of Murphy or his company, and this would have relieved appellants from liability for his negligent acts while so employed. (Hallett v. N. Y. C. & H. R. R. R. Co., 167 N. Y. 543; Wyllie v. Palmer, 137 id. 248; Murray v. Dwight, 161 id. 301; Kueckel v. Ryder, 54 App. Div. 252; Higgins v. Western Union Tel. Co., 156 N. Y. 75.) Fourth. The rule that a person lawfully traveling a public highway and injured by something falling from an adjacent building may be presumed free from negligence, and that the person having charge of the article which falls is yrima facie guilty of negligence (Mullen v. St. John, 57 N. Y. 567; Volkmar v. Manhattan R. Co., 134 N. Y. 418 ; Dohn v. Dawson, 90 Hun, 271; affd., 157 N. Y. 686; Hogan v. Manhattan R. Co., 149 id. 23; Loudoun v. Eighth Avenue R. R. Co., 162 id. 380; Bishof v. Leahy, 66 N. Y. Supp. 342; S. C., 54 App. Div. 619), does not necessarily apply to this case, for here' there is some evidence indicating that decedent assisted in loading the elevator and was in a position to observe the manner in which it was loaded. Upon this point the evidence offered by appellants to show that the employees of the General Fire Extinguisher Company, who had charge of. loading the elevator, were under the influence of liquor, was also competent. (Cleghorn v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 44; Kingston v. Fort Wayne & E. R. Co., 40 L. R. A. 143, 144, and note.) It follows from these considerations that the judgment and order appealed from must he reversed and a new trial awarded, with costs to appellant to abide the event. Yan Brunt, P. J., concurred; Ingraham, J., concurred on first ground; Patterson and O’Brien, JJ., dissented. Order affirmed, with costs to respondent, payable out of the estate.