
    Norman C. Harris, Respondent, v. The Baltimore Machine and Elevator Company, Appellant.
    Second Department,
    April 20, 1906.
    negligence —form of complaint under.Employers’ Liability Act — injury by fall of elevator — when negligence and contributory negligence properly left to jury—charge — entry and review of order granting extra allowance.
    The rule that a complaint should allege negligence as that of the defendant rather than that of the defendant’s servants has not been changed by the Employers’ Liability Act, which makes the negligence of a superintendent that of the master.
    It is unscientific to charge that the defendant “by his agent or servant” was negligent. .
    When it is shown that the cables of the elevator which fell and injured the plaintiff were not babbitted, which was necessary to secure them, and that the plaintiff had notified the defendant’s superintendent of this, and during the plaintiff’s absence on other work the superintendent had continued the work on the elevator, the question of negligence in failing to supply the babbitt is properly left to the jury.
    So, too, the question of the plaintiffs contributory negligence is for the jury when it is shown that after returning from other work he found the elevator running, and was directed by the superintendent to go to work, on it, and was told hy him thái it “ was all right to run.
    A charge that the defendant owed to the plaintiff the ' duty of reasonable care to see that the elevator was safe for the purpose .for” which he was using it' at the time of the accident is not open to the construction that the defendant was made liable for the negligence of the plaintiff’s- fellow-servants, when the negligence of. the superintendent, as representing -the, master under the' Employer's’, Liability Act, was the only question of negligence litigated.
    An entry of an order granting an extra allowance on the clerk’s minutes, is sufficient without the entry of a formal order signed by the judge, but such order cannot be.reviewed except upon appeal therefrom..
    Appeal by the' defendant, The Baltimore Machine and Elevator Company,-from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the cleric of the .county of" Kings on the 22d day of May, 1905,, upon the verdict of a jury for $3,750., • and also from an order entered in said clerk’s office on the 22d day of May, 1905, denying the defendant’s motion for a new trial made . upon the minutes.
    Action by servant against master for negligence. An agent was employed by the defendant to solicit Orders for their electrical elevators in. Hew York city and install them. He hired the plaintiff and other skilled mechanics in that -kind of work to do the "work under his superintendence. A freight elevator the plaintiff was working on fell and hurt him. Its construction was that it was lifted by two cables which had to be fastened in an iron shackle, which was attached in turn t-o the top of the ear, They ran through a hole in the shackle, and had to be fastened there by the pouring in of molten babbitt (a metal harder than lead), in addition to their strands being turned up. and knotted. They ran over a drum at the top of the shaft. The plaintiff knew they would have to be babbitted and that they would be dangerous if not fastened'in that .way, in that they were likely to pull out of the shackle and let the elevator drop. He did not babbitt them; he only turned up and knotted the strands. .There was no babbitt there and no pot or furnace to heat it, he says. At this stage the.said agent or superintendent sent him to -work at another building installing an elevator. “At that time,” the plaintiff testified, “I asked-him how we were-going to babbitt our cables; he. said he would get a lead pot or furnace.” He says the superintendent asked him at that time what there was still to do on the elevator, and he told him “ babbitting in the cables,” putting the cables on the drum and putting in the counterweights. After working about two weeks or ten days on the other job the said superintendent told him he was going to put the elevator in order, and asked the plaintiff about the work. He again fold the superintendent it was necessary to “babbitt the cables ” and do the said two other things. The superintendent then took one of the workmen, who was with the plaintiff away to work at the first elevator. Some days later he told the plaintiff to go back to work on the first elevator, and the plaintiff testified that the superintendent told him the elevator “ was all right to run, all 'ready, only she run too close to the front of the hatch.” On the cross-examination he said what the superintendent said was “ that he had tried the elevator and he found it all right,” and on the court immediately calling his attention to the difference he said he thought the words were that “ the elevator was all right.” The next day he and the superintendent went to work together in the elevator putting in the counterweights. They went up by the elevator to a floor and took on six or seven counterweights. They weighed about 125 pounds each. They then started to go up further in the elevator with the counterweights when the cables pulled out of the shackle and let the elevator drop to the bottom of the shaft. The plaintiff did not look before using the elevator to see if the babbitting which he left undone had been done. He could have looked from a floor above, or by standing by an opening on the floor and simply lowering or raising the elevator so its top would be before his eyes, or by getting up on the car, which anybody could do, a s' he testified.
    The plaintiff was the only witness on his side except the testimony as to his injuries. The superintendent was the only witness called. against him. He denied that the plaintiff ever told him there was no pot or furnace or babbitt, or that the babbitting had not been done.
    
      Theron G. Strong, for the appellant.
    
      Herbert T. Ketcham [Joseph E. Owens with him on the brief], for the respondent.
   Gaynor, J.:

1. At the close the learned trial judge ruled that the complaint alleged a cause of action under the Employers’ Liability Act (Laws of 1902, chap. 600) and charged the jury on that footing, viz., that if the plaintiff was hurt by the negligence of the superintendent he could recover if he was free from contributory negligence. The' complaint ’is now-, as on the trial, criticised as not stating a cause of action under the statute. It alleges that the plaintiff, being in the employ of the defendant, was directed by it to enter an elevator which it had constructed and had under its control, and use the same, arid that he did sothat it was negligently constructed in that the, cable by which it was suspended was negligently fastened to the top of the car; and that by reason thereof, and of defendant’s negligence in directing the plaintiff'to use the car, the said cable became unfastened and the car fell. In the last paragraph it alleges service of the notice required by the statute. The complaint is well drawn; it is. barren of allegations of evidence, and other unnecessary allegations. It is said that the complaint should in strictness have alleged that the plaintiff was directed by the superintendent to use the car, and that such superintendent did the other negligent acts, in order to be deemed under the statute. The learned.trial judge shared this view, but ruled nevertheless that the complaint could be eked out as sufficient. The pleader was ehtifely right in alleging that the negligence was that of the defendant. . To have alleged that the negligence was that of the superintendent would have been unscientific and not in due form. The negligence to be recovered for under the statute is that of the defendant, and n'ot of the superintendent or any agent or employee,,the very same as under the common law. The statute merely changes the common-law rule by making the negligence of the superintendent that of the master in 'the cases where at common .law, it would be that of a fellow-servant. The complaint should be for the negligence of the defendant in every case, now as always, and evidence that the superintendent did the negligent act makes out the allegation of the complaint. For a complaint to allege in any case that the defendant by his agent or servant did thus and so would not be scientific form. The proper form is that the defendant did it, and Whether he did it persorially or by an agent matters not; in either case lie did it. Which way he did it is a matter of evidence, not of pleading. These are every-day rules of pleading too familiar to dwell over.

2. The case was submitted to the jury to find whether the superintendent was negligent-in not having the cables babbitted in the shackle, and directing the plaintiff to use the elevator in that- condition. Assuming that .the plaintiff when he was sent away from the work of installation to work on the elevator in the other building informed the superintendent that the babbitting had not been done, and again later on, as he says, and the superintendent then continued the work, he could be found negligent in not babbitting the cables, for concededly he had the elevator suspended by the cables from the drum, and set running while the plaintiff was working at the other place, without having the babbitting done.

3. Whether the plaintiff was guilty of contributory negligence in using the elevator with the superintendent after he was brought back to it after his absence of about two weeks without looking to see if the babbitting had been done meanwhile was a question for the jury. He was taken away from the work before the babbitting had been done and the cables set in the drum and the elevator set running. The superintendent told him that he would go on with the work, and when he was brought back the elevator was suspended by the cables from the drum and running. Whether this was not sufficient to induce a prudent person to understand and believe that the babbitting had been done was a question of fact, not of law, for the babbitting should have been done before the elevator was suspended and set running.

4. It must be owned that the essential questions of fact were close. It was the testimony of the plaintiff against that of the superintendent. But the defendant’s side must have been seriously discredited in the minds of the jury by contesting that the superintendent was such. The plaintiff was put to much proof and was met with every objection that could be made in establishing that fact; and yet when the superintendent was put on the stand by the defendant he freely admitted he was superintendent, and there never was the slightest ground for denying it. In considering the weight and credibility of the evidence this justly counted for 'something, and sometimes the like counts for much. Trial judges see cases lost in this way every day. • . •

5. There is an exception by the defendant to- the charge of the trial judge in substance that the defendant owed the plaintiff the duty of reasonable care to see that the elevator was safe, for the pun pose for which he was using it at - the time of the accident. This, had reference to the un controverted fact that the superintendent did have the elevator suspended to its cables and set going during the plaintiff’s absence, and had it running for him to work on when, he came back. Construed with the whole charge, as it must be, and, not isolated and technically, it can only refer to the' 'negligence^' of the defendant ’through its superintendent, for that was the only thing litigated; and his negligence would under the statute- be that of the defendant and not of a fellow-servant. The statute took the superintendent, out of the category of fellow-servants. There. Was no claim of the negligence of any fellow-servant or of any one except the superintendent throughout the trial. The whole tenor of a trial has to be- considered in construing a charge. The charge was therefore not open to the construction that the defendant was made liable for the negligence- of fellow-servants.

6. The order granting the extra allowance can only be reviewed by an appeal therefrom. The order appears on the clerk’s minutes. That suffices without a formal order signed by the trial judge. Formerly all orders were entered by the clerk on his minutes, and . that .suffices' still, although it has been much lost sight of in the growing formality of recent years. But there is no appeal from that order.

The judgment and order appealed should be affirmed.

Present — Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ.

Judgment and order unanimously affirmed, with costs.  