
    Anna Karl, Administratrix of Johann N. Karl, deceased, Plaintiff and Respondent, v. Henry Maillard, Defendant and Appellant.
    1. Where one of two servants, of a common principal, is injured by the negligence of the other while engaged in the'same general business, such principal is not liable for the injury.
    2. Where an employee in entering the building of his employer, in the ordinary course of his business, falls through an open hatchway and is killed, and the evidence given tends only to the conclusions, that whenever the hatchway was rightfully opened, it was by the order of the defendant or of a particular agent, and that in the latter case such agent always stood by it when it was open, to guard against accidents, and that on the occasion in question it was opened without the knowledge or permission of such particular agent or of the defendant, but by the unauthorized act of a fellow-servant of the deceased; the conclusion of law is, that the deceased, if himself without fault or negligence, was killed not by the neglect or default of his employer, but of his fellow-servant.
    3. A verdict for the plaintiff, upon evidence which only tends to prove such a state of facts, will be set aside, as contrary to evidence.
    (Before Bosworth, Oh. J., and Woodruff, J.)
    Heard, November 10;
    decided, December 4, 1858.
    
      This action comes before the Court, at General Term, on an appeal by the defendant from an order denying a motion for a new trial, and also on an appeal from a judgment entered on a verdict in favor of the plaintiff.
    It was tried in November, 1857, before Mr. Justice Woodruff and a jury.
    The action is brought to recover damages on account of the death of Johann N. Karl, which death, the complaint alleges, was caused by the negligence of the defendant. Johann N. Karl was killed on the 12th of March, 1856, and was, at the time, in the employment of the defendant. The latter, at that time, carried on business, at 621 Broadway; the premises, occupied -by him, extending through to Mercer street, and including No. 160 Mercer street.
    In front of the entrance door from Mercer street, and extending quite up to the door, there was, inside of the building, a hatchway or hoistway, covered by a trap-door, which trap-door was opened whenever it was necessary to hoist articles through the hatchway. All of defendant’s workmen entered through this door, when coming into the building to attend to their daily work. On the afternoon of the 12th of March, 1856, a little after one o’clock, the defendant returned, from his dinner, to resume his work. The entrance door was closed, but not ‘ fastened. The trap-door was up and the hatchway open, and the plaintiff, on opening the entrance door, fell through the hatchway and was killed.
    The complaint, after giving a description of the premises occupied by the defendant, and stating that his business was that of a confectioner, arid that Johann N. Karl was .employed by him to manufacture in said store “ fancy confectionery by the piece,” alleges “ that, in the course of his said employment, and in consequence thereof, it became, and was necessary, for the said Johann N. Karl, to go to and into the said store and building, by the door or entrance thereto from Mercer street, the said defendant having forbidden the workmen and servants in his employ to enter by the door from Broadway, and directed the said Johann N. Karl, and others in his employ, to enter said store by the door opening from Mercer street aforesaid.
    “And the said plaintiff further says and avers, that the said defendant .... did not cause the hoistway, in the said store and building, on each story thereof, to be inclosed by a good and sufficient railing around the opening thereof, and did not cause such railing to be securely fastened, but on the contrary thereof, the said defendant permitted the said hoistway to be and remain in an exposed and dangerous condition, without any railing inclosing the same; and on the said 12th day of March, 1856, wrongfhlly and negligently caused the trap-door on the first story, or ground floor of the said store, by which the opening of said hoistway was closed, to be raised, and negligently and wrongfully caused the door or entrance to said store from Mercer street aforesaid, to be closed, but not fastened or guarded.”
    . . That, “ on opening the outer door and stepping into the said store, he, the said Johann N. Karl was, by the first step across the threshold, precipitated through the opening of said hoistway, so left open and unguarded, down and into the subcellar, and upon an engine or other machinery, and was thereby so bruised, crushed and mangled, that he immediately died. And so the said plaintiff says, that the said defendant, on the day and year last aforesaid, at the city and county of New York aforesaid, by the wrongful act, neglect and default of him, the said defendant, and his agents and servants, did cause the death of the said Johann N. Karl.”
    The answer of the defendant, “ admits, that on or before the said twelfth day of March, the said Johann N. Karl was retained and employed by the said defendant in the manufacture of fancy confectionery by the piece, and that in the course of said employment, and in consequence thereof, it became and was necessary for the said Johann N. Karl to go to and into the said store and building by the door or entrance thereto from Mercer street.”
    It states, as a defense, that it was a regulation of the store, that all the workmen, who left the premises at noon, should be back at their place by 1 P. M. That, it being necessary that, the hoistway should be open daily, the further rule was established, that the hoistway should be used, each day, after 1 P. M., and that the deceased knew of both regulations. That on the said twelfth of March, the deceased left at noon, and in disregard of one of said regulations, did not return until some time after IP. M.
    
      That, when he did return, the hoistway was open, and being used in the regular and ordinary prosecution of the business of the said defendant. It concludes thus:
    “ And this defendant further says, upon information and belief, that the said Johann N. Karl, upon his return in the said afternoon, to the said store or building, opened the door or entrance thereof, and seeing the said hoistway open, carelessly and negligently attempted to jump across the said hoistway, and in so doing came in contact with some other person or object, whereby, and by his own carelessness and neglect, he, the said Johann N. Karl, was precipitated and fell through the said hoistway down and into the subcellar of the said building, and upon some material which was there deposited, and was thereby so bruised and crushed, that he immediately, or shortly thereafter died; and so this defendant says, that he, the said Johann N. Karl, by his own carelessness, neglect, default and negligence, came to his death, and not by any default, carelessness, or wrongful act of this defendant, or of any of his agents, servants, employees or workmen.
    “Wherefore this defendant demands judgment in his favor in this action, with costs.”
    John White, for the plaintiff, testified that, he was ordered by Degen, the foreman of the gum-room, to hoist a box of liquorice, which was on the floor below that in which the hoistway was. That he opened the hatch to raise it. He shut the door, “because Madame Maillard’s father called him, and said “ John, Mr. Mail-lard tells me to shut the door, it is very cold.” “Karl opened the door about one and a half minutes after I shut it. I was looking up stairs, and saw them take the box of liquorice. At that moment I saw the door open, and I sprung and put my foot forward as far as I could to try and catch the door to stop it, and I found I could not stop the door; but I caught deceased by the shoulder or arm, but I could not hold him. I held on as long as I could, but I myself fell forward, and he fell down the hatchway. He fell two floors, about eighteen feet. He fell in the corner where the big stove is, in which they make fire for the machine.”
    This is the only evidence as to the particular circumstances attending the falling of the deceased through the hoistway. He died on the day on which he fell.
    Vital Rosseau, a witness for the defendant, testified that, “unless I (the witness), gave my orders, the hatches could not be opened for the receipt or delivery of goods.’’ “ I never knew of any one opening the hatch, without applying to me or to the proprietor. At the time when any one applied to Mr. Maillard for goods, he either sent them to me or came and saw me himself.” That he had never known White to hoist before, when the witness was not present. He said, “ when we did use the hatchway, I stood by to see the goods delivered.” “I did not know that the hoist was in use at that time.”
    On cross-examination, he said, “ I had charge of the hatch and attended to the receipt of goods“ when I was applied to for sugar or liquorice, while I was engaged, I would not allow the traps to be opened; I would send the men back to their departments to wait until I was ready.”
    “ There were no goods hoisted unless I or the defendant gave the orders for opening the hatch.”
    Henry Degen, a witness for the plaintiff, testified that “Rosseau was bookkeeper;” “when I wanted supplies I would go to the office and ask defendant; if he was not in the office, the bookkeeper or some one "in the office for it; they then told me to send some men down in the magazine and get it; the men would send it up on the hatchway; sometimes the bookkeeper stood at the door when it was sent up, not always; “whenever we required the hatch we used it.”
    There was a conflict of evidence as to whether a wood-bar had been provided, prior to this accident, for fastening the entrance door. White says he never saw one there before. Degen says the defendant, after the accident, asked a carpenter to make one. Rosseau says there was one prior to the accident.
    They are the only witnesses who testified as to that matter.
    Julius Kollmar, a witness for the plaintiff, said “ the hatch, was used at all hours; sometimes I have seen it open between 12 and 1 o’clock.”
    George Roth, a witness for the plaintiff, said “ the hatch was used at all times; sometimes after 12, and before 1 o’clock.” When the plaintiff rested, (which he did do after the examination of John White was concluded,) the defendant’s counsel moved for a dismissal of the plaintiff’s complaint, on the following grounds :
    “ 1st. The evidence discloses that the deceased was himself guilty of negligence, and contributed to the accident.
    “2d. If any person, other than the deceased, was guilty of negligence, it was White, the fellow-workman of deceased, and the defendant is not liable for injuries accruing in such case.
    “3d. The accident was an ordinary risk and peril of the employment, incident to the place of carrying it on, and the master is not liable for injuries arising from such cause.
    “ The Court denied the motion, to which decision the defendant’s counsel excepted.”
    The ease made does not contain the charge given to the jury. It states that, “ the Judge charged the jury and the jury retired and found a verdict for the plaintiff of the sum of $1,500.”
    The only evidence, bearing on the question of damages, was to the effect that, the deceased was between 28 and 31 years of age; a confectioner and decorator in gum paste. “Karl was a pretty good workman, good as anyone; he was in defendant’s employ ten or twelve months.”
    The defendant moved for a new trial, on a case, and from the order denying the motion, he appealed to the General Term. A judgment having been entered on the verdict, he, also, appealed from that, and the two appeals were heard together.
    Lee & Smidt, for defendant and appellant.
    
      Elias J. Beach, for respondent.
   By the Court.

Bosworth, Ch. J.

—The testimony of Rosseau is direct and explicit that no goods were hoisted unless he or the defendant gave the orders for opening the hatches. No witness contradicts this testimony; some of the witnesses testify that, the hoistway was, sometimes, used between twelve and one o’clock. Rosseau does not deny this. But none of those witnesses testify that, it was used between twelve and one o’clock, without orders, for opening the hatch, having been first given by Rosseau, or the defendant.

Neither does any one testify that, it was a common thing to open the hatches, without first obtaining orders from Rosseau or the defendant authorizing it, or that the defendant knew that, any workman had done it, in any instance, without having- had orders to do it.

The only witness who, contradicts, in any way the testimony of Rosseau, viz.: “when we did use the hatchway, I stood by to see the goods delivered,” is Degen, who said: “Sometimes the bookkeeper stood at the door when it, (supplies) was sent up, not always.” Yet Degen specifies no instances of this kind, nor does he enter into any details, respecting any such occurrence, tending to show that, Rosseau omitted to stand by, when the hoistway was open by the orders of himself or of the defendant, or to the knowledge of either of them.

Rosseau testifies that he did not know the hoistway was open, or was being used, on the occasion in question, until after the accident. No one contradicts him. No one testifies that the defendant ordered, or authorized any one to open it, or was spoken to on the subject. White and Degen were the persons who obtained such permission or received such authority, (as the case is presented to us) if they were given by Rosseau or the defendant to any one. But neither White nor Degen testify to any such fact.

The fact that, Madame Maillard’s father said, “John, Mr. Maillard tells me to shut the door, it is very cold,” is not competent evidence to prove any fact, and would, doubtless, have been excluded had it been objected to. But though received without objection, it is not apparent that, it tends to show that, the defendant knew the hatchway was then open, or if he might suspect it was open that, he had' any occasion to conjecture that, it had been opened without the orders of Rosseau, or without his being present to see to the hoisting of the goods.

When evidence as explicit and direct as that of Rosseau had been given, I think more evidence on the part of the plaintiff was necessary, than she produced, to warrant the conclusion that, any of the defendant’s workmen, even occasionally, opened the hatch and hoisted goods, with any knowledge» on the part of the defendant, that they did so without the order of Rosseau.

If it be true that, when the hatch was authorized to be opened, it was so authorized by the order of Rosseau,. and if it be also true that, on such occasions he stood by to see the goods delivered, and if it be true that, on the occasion in question it was opened 'without the knowledge or direction of either of them, then it was so opened without any fault or negligence of the defendant, and by the careless and unauthorized act of White or Degen, or of both of them.

In thus acting, they were not acting in the scope of their employment, for neither of them had authority to open it, or had been allowed, with the knowledge of either Rosseau or of the defendant, to open it.

If such be the truth of the case, the deceased, if himself free from fault, was injured by the carelessness and improper conduct, of those who opened the hatch, without any direction, so to do, from either Rosseau or the defendant, and without the knowledge of either of them.

If injured by the negligence of a fellow-servant, who was engaged in the same general business as himself, their common principal is not liable, although the employments of the two were distinct; both being necessary, to the prosecution of the business. (Coon v. The Syracuse and Utica Railroad Company, 1 Seld., 492.)

It may, possibly, be made to appear on another trial, that the workmen were allowed by the defendant, to open the trap and use the hoistway, without obtaining his permission or that of Rosseau; but we think the evidence, in the case before us, does not warrant that conclusion.

On the contrary, the explicit testimony that it could not be rightfully opened, without the order of Rosseau, on an application to him, or on an application to the defendant, is, on a fair view of the whole evidence, uncontradicted.

If it be true, that the workmen, without orders from Rosseau or from the defendant, did assume, with the knowledge of the defendant, to open the trap and use the hoistway, it would seem that, it would be easy to prove the fact that, in some instances, or on some occasions which could be specified, it had been done. But no such proof has been given.

If the hatch had been used as Rosseau states it was, there might be no negligence on the part of the deceased, on seeing the door shut, in assuming that the trap was down, and in opening the door and walking in, as one naturally would do, who had no reason to suppose that he was exposing himself to danger in so doing.

On the other hand, if it was a common thing to use the hoist-way, at all hours, and as well between 12 at noon, and 1 P. M., (when the hands were usually absent to get their dinner,) as at other hours, and that any workman, who had occasion to use it, was at liberty to do so, and in the habit of doing so, and that it was not common to use guards or other precautions to advertise the workmen, when in use, that it was open, and all this was known to the deceased; it might be an act of great negligence on the part of the deceased, to walk heedlessly and hurriedly in, without first pausing to see the condition of the hatchway.

We do not think there was any error in refusing to dismiss the complaint. When that motion was made and denied, White was the only witness who had been examined. As the case then stood, there was this large opening, some six feet square, coming close up to the only door which the workmen were permitted to enter. It was open, without anything being done to advise Karl that it was in use. The testimony of White implies, though it does not expressly affirm, that the door was usually open, when the hatchway was open.

The testimony he gave, though somewhat vague and indefinite, was calculated to induce the belief that, he was using the hatchway, as he did then use it, with the knowledge of the defendant. We are not prepared to hold, if such were the facts, that the deceased did not fall through the hatchway, by reason of the negligence of the defendant.

It is with great reluctance that we interfere with the verdict of a jury, in a case submitted to them under instructions which we must assume to have been correct, and satisfactory to both parties, as no exception was taken to them by either.

But assuming the testimony, as it is presented to us, in respect to the regulations respecting the use of the hatchway, and as to the precautions employed, whenever it was used with the knowledge of the defendant, or of Rosseau who had charge of it, to be correct, and that on the present occasion, it was opened1 without the authority, or knowledge of either of them, until after the accident happened; then it would follow that the sad calamity for which the plaintiff seeks to subject the defendant to damages, happened without his fault, and by the fault of a fellow-workman of the deceased.

We think the evidence given, when carefully considered, tends only to the conclusions last stated, and that the ends of justice require that a new trial should be granted.

A new trial is accordingly granted, on payment of the costs of the trial. The costs of the motion for a new trial and of the appeal, to be costs in the cause and abide the event.  