
    Thomas McDonnell, Respondent, v. Andrew J. Robinson Company, Appellant.
    First Department,
    February 4, 1910.
    Master and servant — negligence — injury by hoisting elevator — failure to guard signal rope — Employers’ Liability Act — proof not justifying recovery.
    
      It seems, that where a master maintaining a hod hoisting elevator while stationing men to give signals at the top and bottom of the shaft left the bell rope used in signaling exposed in the intervening stories of the building so that it could be used by any one, and a workman was injured by the sudden starting of the elevator in respirase to a signal from some unknown source, the jury in a common-law action can find the master negligent in failing to establish and enforce proper rules for the operation of the’ elevator.
    But where the action to recover for in j uries so received is based solely upon the liability created by th§ Employers’ Liability Act, and the court has charged that the rule as to safe place.to work had no application, a verdict for the plaintiff will be reversed when based on the charge that the jury might find that the injury was caused by an act of superintendence, if there was no evidence showing who gave the signal; or that any one was charged with the duty of doing so.
    The mere act of giving a signal under such circumstances is not an act of superintendence if given by an employee, where all employees were at liberty to give it and it did not come within the assigned duty of a superintendent. ’
    Moreover, such judgment cannot be sustained where the notice served made no Claim that the accident was due to ’the default of a person exercising superintendence.
    Ingraham, P, J., and Miller, J., dissented.
    Appeal by the defendant-, the Andrew J. Robinson Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York bn the 6th day of April, 1909, upon the verdict of .a jury for $4,BOO, and also from an order entered in said clerk’s office pn the 8th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward P. Mowton, for the appellant.
    
      William, J. Carey, for the respondent.
   Dowling, J.:

The plaintiff was in defendant’s employment on January 30, 1907, as a laborer and was engaged in taking off materials from a hod hoisting elevator in the building at the southeast corner of Fifty-seventh-street and Park avenue, borough.of Manhattan, which had then been completed -to its full height of twelve stories. The elevator was raised or lowered in obedience to signals given to the engineer, who was located in the cellar and co.uld not seé the elevator itself, but determined -its position by means of certain marks upon -the hoisting cable. The system of signals adopted was that in common use for years in similar works, and under it one bell was an order to raise the elevator, one bell to stop it, two bells to lower it and three bells to lower it slowly. There was a signalman at the bottom of the shaft whose duty it was to see that the material was properly placed on the elevator, and then to notify the-engineer thereof; and another, at the top of the shaft, whose duty it was to direct its movements for the two upper floors only.

There was- no one in sole charge of the operation of the elevator on the other floors, and any person might give a signal for its raising or lowering on any one of nine stories out of the twelve, which would be obeyed by the engineer regardless of what the position of the elevator might then be or of who might be working about it. The bell rope which gave the signals was exposed and could be handled and used by any one in the building, whether an employee or not. What might well have been foreseen as the inevitable result of such a condition actually happened in this case, as it must have happened in many others. Ho one was expected to' go upon the elevator, but the laborers in wheeling the barrows on or off its platform were liable to be dragged down or up while holding on to the handles of - the barrows through the. sudden dropping or raising of the elevator which ran as- rapidly as 550 feet a minute. Plaintiff was working on the fifth floor, had doubled up two barrows on the platform and was putting oil two more when, in response to a signal from some unknown source, the elevator was suddenly started- upwards and plaintiff, who still had hold of ¡the handles of one of the barrows, ivas lifted to and on his toes, and, when the barrow fell from -the elevator, was precipitated to the ground floor. The elevator was then stopped within two feet of the sixth floor, but there is no proof of who gave the signal. It would have been perfectly proper to have submitted the question of defendant’s liability under the common law to the jury upon the theory that the accident had' been caused solely by the failure to establish and enforce proper rules for the operation of the elevator,, and for the’ protection of its employees from injury .while working in loading or unloading it, upon proof that the necessity for such precaution should, in the exercise of reasonable care, have been foreseen and anticipated. It would seem that provision could well have been made for a warning to all the floors of any intended change in its position, even if no one were specially detailed to each floor with sole control of the giving of signals. But this trial was conducted upon the theoiy .that liability was created under the Employers’ Liability Act (Laws of 1902, chap. 600); the notice under the act was offered in evidence, and the various motions made, as well ¡as the charge of the learned court and its decision in denying the motion for a new trial, all demonstrate that this was the sole theory of "the trial. This being so,"the judgment cannot stand. After having once charged the jury as to defendant’s liability to furnish a safe and proper place in which plaintiff was to do liis work, counsel for defendant requested the court to charge as follows: “ I also ask your Honor to charge the jury that the rule of safe place has no application to this case.” To which the court replied: “ I think that is so, because the ¡accident, if occasioned by the negligence of the defendant, was by the starting of the hoist, which, if properly managed, was safe.” The only remaining theory, then, upon which the cause of action" came within the act was that upon which the jury was charged, that “ If any of the defendant’s employees charged with that duty gave that signal [i «., to start the elevator] it was an act of superintendence.” To this exception was duly taken.. There was no evidence given as to who gave the signal, nor that any one whatever was charged with the duty of giving the signal. In fact, the very absence of such a person so charged with the duty of signaling is one of plaintiff’s assignments of negligence on defendant’s part. Hor can it be said, under such conditions, that the mere act of giving the signal would constitute an act of superintendence if given by an employee, when every employee was at liberty to give it, and when. it did not come within the assigned duty of a superintendent. In addition to which the notice given under the act made no claim that the accident was due to any default upon the part of any person intrusted with and exercising superintendence.

The judgment and order appealed from must be reversed and' a new trial ordered, with costs to appellant to abide the event.

McLaughlin and Laughlin, JJ., concurred ; Ingraham, P. J., and Miller, J., dissented. * .

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  