
    Mary Croce, as Executrix, etc., of Andrew Croce, Deceased, Appellant, v. James Buckley, Respondent.
    First Department,
    November 5, 1906.
    Negligence—master and servant — elevator used as scaffold — Labor Law.
    A master engaged in putting a fourth story on a building, who uses the top of a freight elevator in an adjoining building for a scaffold on which he directs his employees to work, which elevator is movable from any story by pulling a rope, does not furnish a safe scaffold within the meaning of section 18 of the Labor Law. An arrangement made by the master with the superintendent of the building, allowing him the exclusive use of the elevator, which agreement was not observed, does not exculpate him from negligence in using such an unsafe scaffold.
    The plaintiff, Whose intestate was killed by the moving of such elevator, while using the.same as a scaffold as directed by the master, need not show the cause of the starting of the elevator, in order to recover.
    Scott, J., dissented, with opinion.
    Appeal by the plaintiff, Mary Croce, as executrix, etc., of Andrew Croce, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 1st day of March, 1906, upon the dismissal of the complaint by direction of the. court after á trial at the Mew York Trial Term.
    
      Richard J. Donovan, for the appellant.
    
      Theodore H. Lord, for the respondent.
   . O’Brien, P. J.:

From the facts as stated in the opinion of Mr. Justice Scott it is evident that the elevator was a scaffold within section 18 of the Labor Law (Laws of 1897, chap. 415), which is as follows: “A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure, shall, not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to-the life and limb of a person so employed or engaged.”

As the elevator could be set in motion from any one of the four floors of the building by simply pulling a rope, it was not, I think, a safe and proper scaffold within the contemplation of the above statute, even though it be admitted that it was in sound condition as an elevator and that, while at rest, it was suitable for the use to which it was put, because, unless the power were shut off, it was liable to be moved. -Hor was the arrangement made by the defendant with the superintendent of "the building for its exclusive use, to which defendant testified, but which it was established was not observed, a sufficient discharge of the duty imposed upon the. defendant by the statute. It was unsuitable, as a scaffold, by reason of its mobility, and this was the immediate cause of the accident. It was not essential to the plaintiff’s cause of action to show the cause of the sudden ■ starting of the elevator ; her case was established by showing that the scaffold, as such, was defective or improper and that the accident resulted therefrom.

Upon the evidence there was a question as to whether or not the defendant fulfilled his duty by safeguards which would prevent the elevator being set in motion. It follows, therefore, that the judgment dismissing the complaint should be reversed and a new trial granted, with costs to appellant to abide event.

Ingraham, Clarke and Houghton, JJ., concurred; Soott, J., dissented.

Scott, J. (dissenting):

The defendant was a contractor engaged in doing work upon a building in the city of New York. Plaintiff’s intestate was a laborer employed by him in the course of the work. Two buildings standing side by side were known respectively as Nos. 610 and ■612 West Thirty-ninth street. No. 610 was four stories in height and Ho. 612 was only three stories. The work upon which defendant was engaged was the erection of an additional story on Ho. 612, and in the course of this work it became necessary to cut a hole through the brick wall between the two buildings. No. 610 was used as a furniture warehouse and in.it was a freight elevator running to the top of the building and which was commonly used for carry- . mg furniture up and down" and was apparently used at will for this purpose by the employees in both buildings.- It■ ran to the top of the higher building and on each floor below the fourth there were ■ entrances to it from both buildings. There was no conductor or other person especially charged with running the elevator, but.any one could start it up or down and stop it by pulling, on a wire rope, and to do this it was not necessary that the person operating it should go into the elevator since the rope controlling it could be reached from the outside. - ,-

The opening, through- the''wall was to be made.into the elevator shaft, and defendant employed one Wigmore, a masón, and plain- : tiff’s decedent, who was Wigmoré’s helper, to do this work. The defendant directed his workmen to stand upon this elevator .while cutting the hole. He had previously seen the employees m the building using the elevator to carry the goods up and down, but' before directing the men to use it he had obtained an agreement' from the superintendent of the building that the workmen were to use it, the understanding being that the workmen were to have the absolute use of the elevator when they got ready to use it for the purpose of" cutting the hole. Defendant also made,inquiries as to the capacity of the elevator, and found that it was capable of upholding-many times the weight that would be put upon it by reason of its'use by his workmen. The men were ready to go. to work at cutting the hole on a Friday morning, and at that time, in accordance with the-.arrangement'between defendant and the' • superintendent of the building, the elevator was run up' to the top .' floor and the workmen went upon it and began to cut the hole in the Wall. They continued to so work safely during all of' Friday and for sonde hours on Saturday. During this time, apparently in violation of the agreement between the defendant and the superintendent "of the building, the elevator was occasionally used by employees of the ■ .■ building for carrying furniture from floor to floor.'. Whenever it was so desired to use the elevator, the employee Using it would first - give warning to defendant’s workmen by calling out, and the'workmen Would suspend their work while the elevator was being used, . sometimes remaining on it and sometimes stepping off. No injury occurred to , either of the workmen on any occasion when the elevator was so used. The defendant visited the work from time to time while it was' in progress, but did not see any one use the elevator while his men were working on it, and did not know prior to the accident that any one did use it while his men were working on it. On Saturday morning, while the men were working in the elevator, it suddenly started upwards, the car hit the wheel or the beam supporting the wheel upon which the rope ran which elevated and lowered the car; that rope broke and the car fell to the bottom of the building, inflicting upon plaintiff’s decedent tlie'injuries from which he afterwards died.

The'evidence suggests no explanation whatever as to the cause of the accident. LTo defect in the elevator or any of its appliances is shown, and indeed it was expressly conceded on the trial, by plaintiff, that the elevator, considered with reference to its use as an elevator, was in sound condition, hior does it appear who, if any one, was instrumental in setting it in motion, except that it was testified that neither of defendant’s workmen started it. Upon this state of facts the court dismissed the complaint. < . It is now urged upon - behalf of the plaintiff that although safe, suitable and proper when used as an elevator, the car became and was unsafe, unsuitable and improper, and not so constructed, placed or operated as' to give proper protection to life and limb when used as a place to stand upon when working, at "which time, as it is insisted, it became in effect a scaffold within the meaning of section 18 of the Labor Law (Laws of 1897, chap. 415). With this last contention we are disposed to agree, and to hold that when hoisted up to the top story and there used as a place upon which the workmen were 'to stand while cutting the wall, the elevator became and must be considered as a scaffolding or other mechanical contrivance furnished by defendant for the performance of the work. So considered it was defend-: ant’s duty to exercise reasonable car§ and diligence to see to it that it was safe, suitable and proper for the use to which it was to be put, and that it was so constructed, placed and operated as to.give proper protection to the life and limbs of his workmen whom he directed so to use it, and the question is whether or not he failed in the fulfillment of this duty. It seems to be quite obvious that so long as it was permitted to remain, and did remain stationary, it was entirely safe and suitable for -the purpose for which it was used. It was capable of sustaining the necessary weight, and there is nothing to indicate that it was liable to sudden or other movement without the. inter: vention of any active agency. So far as'can be seen it was as safe when used as a scaffold, and so long as it remained stationary, as any other suspended scaffold would be. ' The only apparent danger . attending its usé, if any, was that which resulted from its mobility, and the possibility that some one-might set it in motion" while the workmen were using it. Undoubtedly there was, as We think, a certain danger To the workmen, if the elevator continued to be used' .as an elevator, while they were standing upon it and using it as a scaffold. This danger defendant undertook to guard against by obtaining the promise-' of the superintendent of the building that the workmen should have tlie absolute use of the elevator while they had occasion to use it. It may be. that he was- not justified in relying solely" upon this precaution, and if the accident had happened in the course of the usual and customary use of the elevator by the employees in the building a question might have been presented for the jury whether or not the defendant should not have foreseen, the' possibility of such , use and taken more effective measures to guard .against it than merely to rely upon the promise of the superintendent. The defendant,, however, even under the terms of the Labor Law, was not an absolute insurer of the. safety of his workmen while working in the elevator, and was not called upon to foresee and' guard against every possible contingency how^ ever remote and improbable. He was not, therefore, bound to guard against .every unexplained and unexplainable accident,, such as that which did occur. At most he can be held bound only to foresee that, notwithstanding the promise of the superintendent, the elevator might be used in the Way in which it was obvious it might be used if. no precaution were taken; that is, for running u.p and down by -the employees of the building in. the course - of theil- business. Although he did not guard absolutely against this contingency, the, accident did not occur, so far as the evidence shows, from-any such use. True, the elevator was used by the employees in the building, and thereby, perhaps, the workmen were put in peril, .but the peril from that cause never ripened into injury. What produced the accident was the sudden jerking of the elevator up against the beams; but what produced that sudden jerking up nowhere- appears, and it is indulgence in the merest conjecture, without evidence to support it, to presume that it resulted from the act of some employee in the building} or would not have occurred just the same if the most effective precaution had been taken to prevent the employees from using it. There is nothing in the case, therefore, to justify the presumption that the accident resulted from any causé which the defendant should have foreseen and have guarded against. The mere fact that the accident happened does not impute negligence to the defendant, since he neither constructed nor maintained the elevator. He made proper inquiry as to its weight-sustaining capacity ; the elevator as an elevator is conceded to have been safe and suitable, and obviously wras equally safe and suitable for use as a ' scaffold if permitted to remain stationary. Its mobility indicated, perhaps, a danger in case it was used, but the accident did not result from such use. Therefore, if we assume that defendant was negligent in not taking more effective steps to prevent the use of the elevator, that is the only negligence of which he was guilty and that negligence did not result in injury. Undoubtedly the defendant might have taken precautions which would have rendered the elevator immobile under any conceivable circumstances, but to hold him to this degree of responsibility would be to charge him in effect as an insurer. The safer and better rule is to require him to exercise only such a degree of care as should be reasonably expected from a careful, prudent and vigilant man. So far as appears, no man, however careful, prudent and vigilant, could have foreseen the particular cause which led to the accident herein involved, because we do not even yet know what that cause was.

The judgment should be affirmed, with costs.

Judgment reversed and. new-trial granted, costs to appellant t# abide event.  