
    Cathrin Fiesel, as Administratrix, etc., of Francis Xavier Fiesel, Deceased, Respondent, v. The New York Edison Company, Appellant.
    Second Department,
    January 10, 1908.
    Negligence —, reversal of current in electric motor—death by fall of elevator—question for jury—when one called to assist does not become fellow-servant.
    The defendant’s,servant, repairing an electric motor which operated an elevator, transposed the wires so that the motor revolved in á reverse direction,; whereby the rope used to start the elevator set it in motion in a direction opposite to . that designed. It was the servant’s duty to test the machinery after repairs, but instead of doing so personally, he called to the plaintiff’s intestate, win was employed by the owner of the elevator and-who sometimes operated it, to run the car. On moving the starting rope, the car went upward instead of downward as expected, and the automatic contrivances for stopping IIo machinery not operating by reason of the reverse motion, the car struck the; beams at the top of the shaft under power, tore away the hoisting ropes, and fell to the bottom of the shaft.
    
      Held, that it was for the jui-y to say whether the transposition of the -wires by the defendant’s servant was negligence;
    
      That the plaintiff’s intestate, though called upon by the defendant’s servant to assist, did not for the time being become a fellow-servant so as to bar a recovery, it not being necessary for the defendant’s servant to call for help in order to carry out his master’s business.
    Appeal by the defendant, The New York Edison Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 23d day of April, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles I. Taylor [Henry J. Hemmens with him on the brief], for the appellant.
    
      F. Angelo Gaynor [John T. Smith with him on the brief], for the respondent.
   Gaynor, J.:

The defendant was making repairs and alterations in the.electric installment of the stable where the deceased worked. Two wires connected the electric meter with the electric motor which ran the machinery of the .freight elevator. One was the positive, i. e., the feed, and the other the negative, i. e., the return wire, i. e., the electric current was conveyed to the motor by the one, and returned to the meter by the other, the circuit being thus formed. The workman of the defendant disconnected these two wires and replaced them with new ones. He made a mistake and reversed or crossed them, as the jury found, i. e., he connected the wire from the positive pole of the meter with the negative pole of the motor, and vice versa with the other wire. The result was that the motion of the motor was reversed when the current was let on, and hence the motion of the elevator machinery and car also. Instead of the car being made to go up by pulling down on the rope, and to go down by pulling up on the rope, as was the normal condition, the car was given an opposite motion by the said reverse of the power, i. e., it went down if you pulled down on the rope and up if you pulled up.

When the defendant’s workman got through with his work at the meter and. wires it was liis duty to test the elevator machinery, in ■order'to See that it worked normally and in order: This he coilld do by turning the current into the motor and running the machinery at the bottom of the elevator shaft which ran the elevator'car, and observing it as. it ran,, for if it ran right it must run the cat right. Instead lie called up'froin the bottom of the shaft to the deceased who was about his own work on the second floor' to run the car as he wanted to try it. The deceased went upon the platform of the car, which was' at thé second floor, to do as requested. He was employed ás a stableman to: take care -of a number' of .horses; but also ran the elevator now and then. The car immediately .went, up rapidly until the overhead frame or beam- to which the- lifting cable was attached' struck the beams at the top of 'the shaft, and then 'fell to the bottom of the shaft, killing the deceased. The machinery of the elevator was so set that the platform of the car could go only to the level of the third ’floor, which was the top floor. When it got thére, automatic contrivances stopped the machinery, which could be started again only by pulling up on the rope in order to go down. But the said reverse motion of the machinery ’-put such contrivances out of gear or use,, and there was -nothing to stop the car except the use ,.of the handrope' on the car, and the effect of ■pulling, on that was reversed by the reverse motion of the machinery, as, already stated. The jury therefore drew the legitimate inference that .when, the deceased went lipón the car he pulled up on the rope in Order, to, make the car .descend, but instead it nmdethe-car go up, and no matter how much he may have continued to pull up on the rope to-stop-, the car or make it go down,-- as it should do (and he was unaware of the- change that had occurred) it continued to-'go up until it. struck Overhead; and after it struck the lifting cable continued to. pull- (for.'the. machinery.continued in motion), .until it ..pulléd out of the eye or socket of the. overhead .beam,of the car, and , then, the car fell. The defendant’s workman testified that when lie .called up to the deceased he told him to run . the. car tip, but the jury were not obliged to believe this. The argument is that.haying been told to go up the-deceased. pulled the rope down, and as the car responded by going up, that .showed ..that the. machinery was working normally, and that therefore the wires had not been ■ reversed... But if,the wires-were: reversed, and the. deceased, p,tilled the rope with the intention to go up, he would have pulled it down} and the car would have, gone dow.n instead of going up.

It is plain that the deceased was killed by the way the wires were set by the defendant’s workman, and it was for the jury to say if that was not negligence. But the' claim is that the deceased was for the time being not in the service of his employer, the owner of the stable, but in that of the defendant, and therefore a fellow servant of the defendant’s workman, in which case the negligence of such workman would defeat a recovery in this action. It must be owned that this is a question not free from difficulty. An emergency employe, called on by another' employe to assist him, for however short a time, becomes a, fellow servant, and subject to the rules of law applicable to the injury of a servant by his fellow. But he must be so called on as of necessity in order to make him an employe, for a servant has no authority to call on another to help him in his master’s business as of necessity unless the necessity exists. , If he can do the work himself, there is no occasion of necessity to imply power in him to employ assistance (Marks v. Rochester R. Co., 146 N. Y. 181; Marks v. Rochester R. Co., 41 App. Div. 66; Wischam v. Rickards, 136 Penn. St. 109; Olive v. Whitney Marble Co., 103 N. Y. 292). But in the present case the defendant’s workman .did not need the help of the deceased. It is undisputed and apparent on the evidence (if not a mechanical fact that judicial notice may be taken of) that he could have tested the set of his wires by revolving, the machinery without running the car at all; and more than that, positive and negative poles can be ascertained by other simple tests well known to those who do electrical work.

The judgment should be affirmed.

_ Present—Jenks, Hooker, Gaynor, Bich and Hiller, JJ.

Judgment and order unanimously affirmed; with costs.  