
    Hugh Boyle, Appellant, v. McNulty Brothers, Respondent, Impleaded with George A. Fuller Company, Defendant.
    Second Department,
    December 2, 1908.
    Master and servant — negligence — injury by elevator — acts of superintendence — obeying unexpected signal without investigation — proximate cause — erroneous charge.
    Where one concededly a foreman within the Employers’ Liability Act orders an engineer operating an elevator to raise the same in answer to a signal when the signal naturally to be expected would have been a signal to lower the car, the act is one of superintendence.
    Where a hoisting elevator, operated by an engineer in the basement, had already been raised to unload sand, and it was to be expected that the next signal would be one to lower the car with empty wheelbarrows, and, a signal to raise being given, the defendant’s foreman ordered the engineer to obey the signal without investigation as to whether it would imperil an employee who was unloading sand, it was for the jury to say whether the foreman was negligent.
    Although the accident might not have happened but for the erroneous signal and there is no proof as to who gave the signal, the complaint should not be dismissed on that ground, for the negligence of the foreman in ordering the signal obeyed without investigation intervened between the signal and the accident.
    Where it was conceded at trial that the engineer was a fellow-servant of the plaintiff, it was error to charge that a recovery could be based on his negligence.
    Appeal by the plaintiff, Hugh Boyle, from a judgment of the Supreme Court in favor of the defendant McNulty Brothers, entered in the office of the clerk of the county of Queens on the 23d day of May, 1908, upon an order made at the Queens County Trial Term and entered in said clerk’s office on the 20th day of May, 1908, setting aside the verdict of a jury in favor of the plaintiff for $5,000, and dismissing the complaint as to the said defendant McNulty Brothers; and also from the said order pursuant to which the judgment appealed from was entered.
    
      Francis A. McCluskey [James E. Smith with him on the brief], for the appellant.
    
      Louis Cohn [Frank V. Johnson with him on the brief], for the respondent.
   Miller, J.:

This is a negligence suit brought under the Employers’ Liability Act. The plaintiff’s injuries resulted from a fall down an elevator shaft from the third floor of a building in course of construction, caused by the sudden starting of a hod-lioist under the following circumstances: The plaintiff had been directed by the foreman of the defendant McNulty Brothers to unload three elevator loads of sand on the third floor of the building. The work was done in the following manner: The sand was put on wheelbarrows and wheeled onto the hoist in the basement, a signal of one bell was given to the engineer who raised the hoist to the third floor, the plaintiff took the wheelbarrows off, emptied them, put them back on the elevator and gave a signal of two bells to the engineer, who then lowered the hoist to the basement. The accident occurred between eight and nine o’clock in the evening. The plaintiff was in the act of putting the empty wheelbarrows of the third load back on the elevator when the engineer received a signal of one bell and started the elevator up, precipitating the plaintiff to the basement. Said foreman was in the basement at the time the accident happened. Shortly before that he told the engineer that upon lowering the elevator to the basement after taking up the third load his work was over for the night. There is evidence that when the engineer received the signal of one bell he said to said foreman, I got a signal; what does it mean % ” to which the latter replied, “ Oh, I don’t know, * * * hut go ahead up anyway.” The jury found a verdict of $5,000 in favor of the plaintiff. The trial court set aside the verdict and dismissed the complaint.

It is undisputed that said foreman was a superintendent within the meaning of the Employers’ Liability Act. The work was being 'done' under his personal supervision and direction. His act, in directing the engineer to raise the elevator in response to the signal of one bell, was an act of superintendence. (Guilmartin v. Solvay Process Co., 189 N. Y. 490.) If, therefore, there was evidence from which a jury could find that said act was negligent, it was error to dismiss the complaint, for it is plain that the notice served in this case was a sufficient compliance with section 2 of the Employers’ Liability Act.

When the signal of one bell was received, both the engineer and the foreman had reason to suppose that the plaintiff might be in the act of taking the wheelbarrows off the hoist or of putting them back on. It is not suggested that either of them had any reason to think that the plaintiff gave said signal. On the contrary, they knew that he had no occasion to give a signal of one bell, but that when his work was finished the engineer might expect a signal of two' bells to lower the hoist. While it does not appear who gave said signal of one bell, it is undisputed that the plaintiff did not. The very fact that the engineer asked the foreman what to do when he got said signal showed that said signal was so unexpected as to cause the engineer to think that it might be dangerous to move the elevator in response to it without further investigation, and the foreman, without knowing whence the signal came, directed the engineer to raise the elevator, although he knew that act might imperil the plaintiff. I think that a jury would be justified in finding that the foreman was negligent in directing the engineer to raise the elevator in response to a signal which he had no reason to expect was given by the plaintiff without first ascertaining that the plaintiff’s work was finished and that he was no longer in a position to be harmed by the unexpected starting of the elevator.

Tlié trial court set aside the verdict and dismissed the complaint on the ground that the accident was caused by the giving of the signal and that there was no proof as to who gave the signal. It may be that the accident was caused by the giving of the signal in the sense that otherwise it would not have happened, but the negligence of the foreman, if his act was negligent, intervened between the giving of the signal and the accident. Had the foreman' exercised the caution which the engineer’s question suggested that the occasion demanded, lie would not have directed the engineer to hoist the elevator without regard to what the possible consequences of that act might be.

The court charged the jury that the plaintiff might recover for the negligence of the engineer. This was erroneous for the reason that the case was tried upon the concession of counsel that the engineer was the servant of said defendant and hence the plaintiff’s fellow-servant. For this reason a new trial must be had.

The order appealed from should be modified accordingly.

Woodward, Hooker, G-aynor and Rich, JJ., concurred.

Judgment reversed and order modified so as to provide for the granting of a new trial, and as modified affirmed, with costs to the appellant to abide the event. 6  