Opinion
July Term, 1901.
H. Snowden Marshall, for the appellants.
Frederick L. Taylor, for the respondent.
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 prima 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 be reversed and a new trial awarded, with costs to appellant to abide the event.
VAN 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.