
    HONORA BARRETT, Administratrix of John Barrett, deceased, Plaintiff and Appellant, v. THE SINGER MANUFACTURING COMPANY, Defendants and Respondents.
    Where an elevator, owned by the defendants, was, at the time of the injury to the plaintiff, being operated by a contractor of the defendants, and it not appearing that the defendants had any control over the apparatus, but merely gave the use of it to the contractor, and supplied the requisite power—lleld¡ defendants were not liable for the injury, even though the injury was caused by the insufficiency or insecurity of the apparatus.
    This is different from the cases where a master is held to be liable for an injury to his servant. In those cases the liability rests upon the relations of master and servant, and where the latter is under the control and bound to obey the orders Of the formo** Per Monell, J,
    Before Monell, McCunn, and Fithian, JJ.
    
      [Decided October 30, 1869.]
    This, case was tried before Mr. Justice Freedman and a jury
    The action was to recover damages sustained in consequence of the death of plaintiff’s husband, through the alleged negligence of defendants. The defendants are a corporation, and own a factory building in Delancey street, in the city of New York, and were and are engaged in the business of manufacturing and selling sewing-machines. On the trial it appeared, on the part of the plaintiff, that one Tucker was employed to do mason-work in and about the defendants’ factory building, some or all of which was in the upper part of the building, and for that purpose Tucker had in his employment several persons, one of whom was Barrett, the deceased. There was a hoisting apparatus or elevator in the building, operated by steam-power from a steam-engine owned by the defendants, and managed by an engineer in their employment, in the lower part of the building, and which was used by Tucker and his employes in hoisting material for the mason-work. On the 4th of May, 1868, the deceased was upon the elevator with two harrow-loads of brick, being hoisted to the top floor of the building; the hoisting rppe broke, in consequence of a defect in the drum on that part of the hoisting apparatus over which the rope passed. The elevator, with Barrett thereupon, was precipitated to the bottom of the building, and he so injured as to cause his death. At the close of plaintiff’s testimony, the court, on motion of defendants’ counsel, dismissed the complaint, on the ground that there was no case made to go to the jury, to which ruling and decision plaintiff’s counsel excepted, and from the judgment entered thereon plaintiff’s counsel appealed.
    
      Mr. B. Wright for appellant.
    The idea oí privity of contract in this case was error. It is not required where the cause, of action is for an injury received through the negligence of another. In a suit founded upon contract, and for a breach thereof, privity is essential, but not where the basis of the suit is in tort and for negligence. The law implies the same duty to use competent care and skill, and to be liable for the neglect of it, whether that, dnty is towards a public or a private individual, where human life is at stake. It made no difference, if the defendants gratuitously undertook to furnish and perform what they were under no legal obligation to do, viz., to elevate and lower the contractors’ workmen a*nd materials. They assumed to do both, and the contractor allowed them so to act, implying and assuming that they would use all due care in the preservation of human life, and that they would not introduce him to a defective machine, or one .improperly erected. The mechanic felt equally safe, and was legally warranted in so assuming. The situation of the defendants was one to imply skill and confidence, and to inspire confidence and safety (2 Seld., 410 ; 15 N. Y., 448 ; 1 Hilton, 436).
    Mr. R. T. B. Easton, for respondents.
    The plaintiff has failed to prove that the elevator was kept, maintained, and operated by the defendants, or that it was kept, maintained, and operated for raising up and lowering down men and'persons, or that the deceased was in the employ of the defendants, or of their servants, agents, or employes, orthathe entered the elevator in obedience to instructions and to perform the labor allotted to him, or that there was any neglect on the part of the defendants with reference to the elevator.
   By the Court:

Monell, J.

There was some, evidence in this case, sufficient, I think, to have gone to the jury, that the elevator which fell with the deceased was constructed wholly or in part by the defendants. The contractor testified that he put the platform together, but the drum, which was the cause of its falling, had been constructed by the defendants. 'There was also some evidence of the insufficiency or insecurity of this apparatus, sufficient, perhaps, to charge the defendants with negligence, if they occupied such a relation to the deceased as, upon principles applicable to the case, would otherwise render them liable.

The elevator was, however, in the possession of, and, at the' time of the accident, being. operated by and for the defendants’ contractor, and the deceased was in his employment, and, there-, fore, his servant. It did not appear that the defendants had any control over the apparatus, or were in any manner connected with its operation. They merely gave the use of it to the contractor, and supplied the requisite power.

This is a case quite different, therefore, from the qlass of cases where a master is held liable for an injury to his servant caused by his negligence, or by defective or unsuitable machinery, which ' the servant, in the course of his employment, is required to use. In those cases, the liability rests solely upon the relation of master and 'servant, and the employer is bound to exercise all ordinary care, and the servant has a right to rely upon such care. The rule is, that a servant is under the control and is bound to obey the. orders and directions of his master; and where a servant, who has not the same means of knowledge of the safety of machinery as his employer, is injured by some defect in it, which was known to the master, or which he had negligently failed to ascertain, and therefore ought to have known, the liability of the master is, in such a case, founded upon the same principle (Ryan v. Fowler, 24 N. Y. R., 410 ; Loonan v. Brockway, 3 Robt., 74).

But where the relation of master and servant does not exist between the party charged with negligence and the injured person, the principle which underlies the liability of the" master does not apply. In this case no such relation existed between the defendants and the deceased. The work in which he was engaged was being done under a contract between the defendants' and one Tucker, in serving whom the deceased was killed. He was the servant of the contractor, and the rule of respondeat superior has no application (Blake v. Ferris, 5 N. Y. R., 48). . ,

Nor was this a case falling within the principle which holds a party liable for an injury sustained by any one without fault, xvhich was the probable consequence of his own negligence, when such negligence was imminently dangerous to life (Thomas v. Winchester, 6 N. Y., 397; Smith v. N. Y. & Harlem R.R. Co., 19 id., 127).

For these reasons I am of the opinion that no cause of action against the defendants was shown, and the complaint was, therefore, properly dismissed.. "

I am in favor of affirming the judgment.

Fithian, J.

(concurring). I am unable to discover any evidence in this ease tending to charge the defendants with any negligence causing or 'contributing to the injury for xvhich the action is ’ brought. The injury was caused from negligent and defective construction of an elevator or hoisting apparatus in defendants’ building. _ The proof, upon plaintiff’s own shoxving, is conclusive that this elevator or hoisting apparatus was not constructed, operated, or in any manner used or controlled by the defendants. The defendants, as is conceded, were engaged in the business of manufacturing sewing-machines in this factory in question, and for that purpose, or some other purpose, had and used in their building a steam-engine for steam power.” Desiring to have some necessary work done in their building, defendants employed the witness Tucker, a mason and builder ” (fol. 25), to do this work under his own directions, and by men employed by him; and it became necessary that material for this work should be elevated to the upper part of the building. Tucker purposed to construct an elevator for that purpose, and defendants’ officers gave him permission to use steam-power from the defendants’ engine for hoisting, and any suitable materials of defendants which he could find about the building, for the construction of such elevator. Availing himself of this permission, Tuclcer did construct the elevator in question, cut holes in the floor through which it was to work, attached it to defendants’ engine so as to get “ power,” and managed and operated it entirely under his own supervision and that of his employes. True, he consulted with-Van Dyke, defendants’ superintendent of alterations, and got some suggestions from him as to how the elevator should be made. But that does not make it defendants’ job. There was no evidence to show that constructing an elevator was any part of the “ alterations” which Van Dyke was employed to superin tend. The proof is the reverse. Upon these facts I know of no principle of law upon which the defendants can be held responsible for any injury caused by negligence in the construction or operation of that elevator while thus in the management of a third person. The facts do not bring the case within the authority of the case of Cook v. President of the New York Dry-dock Company (1 Hilton, 436), or the other authorities cited by appellant’s counsel. The judgment should be affirmed,'with costs.  