Michael J. Moran, as Administrator, etc., of Patrick Moran, Deceased, Respondent, v. Conrad Carlson, Appellant

Michael J. Moran, as Administrator, etc., of Patrick Moran, Deceased, Respondent, v. Conrad Carlson, Appellant. Negligence — act of an engineer in starting an elemioi' while a hodcarrier is putting ■ brides thereon — when the engineer and. hodcarrier are not fellow-sermnts — obeying an wal direction from an unseen person to lower the elevator constitutes negligence on the part of the engineer. In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the latter was a laborer in the employ of a contractor who was engaged in erecting a building; that the defendant had furnished the contractor-with a hod elevator and an engine and engineer for its operation; that while the plaintiff’s intestate was on the first floor of the building in the act of placing a hod of bricks upon the elevator, the engineer started the elevator downward and the intestate fell, sustaining injuries which resulted in his death. The engineer, who was stationed outside the building some thirty-eight or forty feet from the elevator, claimed that he lowered the elevator in obedience to some one in the cellar who called, “Engineer, lower the machine down.” He admitted that he did not see the person who called and did not know who he was. Evidence was given to the effect that the call to which the engineer referred came from an upper floor and did not relate to the elevator; that the customary method of advising the engineer when to raise and lower the elevator was by a bell attached to the apparatus, and that the engineer did not ordinarily heed oral directions. Held, that the deceased and the engineer were not fellow-servants; That the evidence was sufficient to sustain a finding that the engineer was negligent in obeying, without investigation, an order for the lowering of the elevator which did not emanate from the floor at which the elevator had stopped; That a judgment entered upon a verdict in favor of the plaintiff should be affirmed. Appeal by the defendant, Conrad Carlson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of November, 1902, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 20th day of November, 1902, denying the defendant’s motion for a new trial made upon the minutes. L. Sidney Garrere, for the appellant. James O. Groypsey, for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: Plaintiff’s intestate, Patrick Moran, was a laborer in the employ of Kyran A. Murphy, a contractor, who was engaged in the erection of a school building in the borough of Brooklyn. The defendant was in the hod elevator business, and furnished to the contractor a hod elevator for use in the erection of the building, together with necessary rigging, and an engine and engineer to operate the elevator. Just before the accident which caused Moran’s death, the elevator had been raised from the cellar to the first floor, where it stopped. While Moran was in the act of placing a hod of bricks upon the elevator it started down, and Moran went over the crossbar, sustaining injuries which caused'his death. The contention upon the part of the plaintiff on the trial was that the engineer, whose engine was outside the building about thirty-eight or forty feet from the elevator, was negligent in starting the elevator downward, either without having received any signal to do so, or without having , received a proper signal. No exceptions were taken to the charge, and the appeal is based upon the propositions that the motions to dismiss at the end of the plaintiff’s case and at the end of the whole case should have been granted, and furthermore that the verdict was contrary to the evidence and weight of evidence. The learned trial judge was undoubtedly right in holding' that the deceased and the engineer in charge of the hod elevator were not' fellow-servants. (Mills v. Thomas Elevator Co., 54 App. Div. 124; affd., 172 N. Y. 660.) He charged the jury that the defendant was liable for the want of reasonable care upon the part of the engineer, and the correctness of this proposition is not disputed, the contention of the appellant being simply that the evidence did not suffice to establish the absence of such care. There was abundant testimony, however, showing. that the customary method of advising the engineer when to raise and lower the elevator was the ringing of a bell attached to the apparatus, and the engineer did not ordinarily heed oral directions to raise, or lower it when the bell was in working order. The bell appears to have been in working order at the time of the accident, because the engineer himself testified: “ When the elevator left the cellar to go up to the first floor just before this accident the bell had rung.” The bell did not ring, however, as a signal to lower it, but the engineer attempts to justify his action in letting it down at the time when the plaintiff was hurt by saying that some one in the cellar called out to him, “Engineer, lower the machine down.” He admits that lie did not see the person who gave this order, and did not know who lie was. It seems to me that the engineer’s own account of the occurrence is such as to warrant the imputation of negligence against him. If the call had come from the floor above, where the elevator had been stopped, it might reasonably be argued that it was consistent with care and prudence on his part to obey it, inasmuch as a person upon that floor would know the condition of things about the elevator and whether it might prudently be moved or not; but coming, as he says the call did, from an unknown person in the cellar, who might not clearly be able to perceive the condition of things on the floor .above, it may well be deemed to have been imprudent to lower the elevator in the absence of any signal by means of the bell, without taking some precaution to ascertain the source of the order and that it had been given with due regard to the safety of those employed in the building. There is also evidence in the case tending to show that the call which the engineer claims to have obeyed consisted merely of the words “ Let it down,” and did not expressly refer to the elevator at all, but came from an upper floor, and related to work in no wise connected with the elevator. If such was the fact, I think the jury were also at liberty to infer negligence on the part of the engineer in complying with a direction coming from a distant part of the building where he ought to have known that the elevator could not have been at that time. On the whole case I think the evidence was sufficient to sustain the verdict, and that the judgment should be affirmed. Judgment and order unanimously affirmed, with costs.