
    John Buckley, Respondent, v. Alfred Beinhauer, Appellant.
    First Department,
    February 4, 1910.
    Appeal — objection not calling for reversal — master and servant — negligence — injury by hoisting elevator -—facts showing relation of master and servant — Employers’ Liability Act — acts of superintendence — Labor Law — duty to furnish safe hoist.
    Where a defendant sued for negligence admitted the receipt of a notice under the Employers’ Liability Act on a certain date and the plaintiff offered the notice in evidence without making proof that the service was before the commencement of the action, a mere objection that no- foundation was made for the admission of the notice without specifically pointing out the omission to prove that service was prior to the action is not ground for reversal since if the specific objection had been made, the defect could have been supplied.
    Evidence in an action to recover for injuries received by a mason who was injured by a hoisting elevator used in the construction of a building examined, and held, that the- jury were justified in finding that the defendant, although it had sublet the contract for that particular work, had assumed its performance by a subsequent agreement with the sub-contractor so as to become the master of employees of the latter.
    One who employs and directs servants in the performance of their work and, whose sole and principal duty consists in supervision, is a superintendent within the meaning of the Employers’ Liability- Act, although he may occasionally help with his hands.
    To operate a machine- means to work it, or to regulate and control its management and operation.
    
      Queers, as to whether the section of the Labor Law prohibiting a master erecting or repairing a building from using unsafe hoists, or ones not so operated as to give proper protection to employees, charges the master with aii absolute duty to work such hoist safely.
    
      In any event, said statute charges a master with a continuing duty to see that the hoist is operated by a proper method.
    The Employers’ Liability Act was intended to change the common-law rule that the character of an act and not the grade of the servant doing it determined the master’s liability, and while a master is now liable only for the act of a person exercising superintendence, the grade of the servant doing the act ought to qualify and determine the character of acts which of themselves are doubtful and indeterminate.
    Where a superintendent in order to expedite work himself undertook to signal the engineer operating a .hoist used in the construction of a building and caused injury to an employee by a premature signal, the jury may find that the act was one of superintendence.
    Appeal by the defendant, Alfred Beinhauer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 29th day of January, 1909, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 3d day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank V. Johnson, for the appellant.
    G. V. Smith, for the respondent.
   Miller, J.:

The plaintiff, a mason’s helper, was wheeling a wheelbarrow, loaded with fire bricks, from a hoist at the seventh floor of a building in the process of construction, when his foreman, one David Haw, who had temporarily taken the place of the signalman, gave a. signal to the engineer to lower the hoist before the plaintiff got safely away from it, for so the jury were justified in finding, with the result that the plaintiff was precipitated down the shaft, receiving the injuries for which he has recovered. The defendant was the general contractor, but had sublet portions of the work, among other things, the work of putting in the Herculean arches, for which the fire bricks were being carried to the seventh floor and unloaded. The court submitted to the jury the questions, inter alia, whether the plaintiff and Haw were in'the employ of the defendant at the time of the accident, and whether Haw’s act was a negligent act of superintendence. Other grounds of negligence were submitted to the jury, but as no exception was taken to their submission, and-as no question is raised on this appeal relative to them, they' need not be considered. The important question to determine is whether the evidence justified findings that the plaintiff and Haw were in .the employ'of the defendant at the time of the accident, and that Haw’s negligence in giving the signal before the plaintiff had got safely away from the hoist was an act of superintendence.

A preliminary question is presented by the appellant’s claim that the plaintiff failed to prove service of the notice before the commencement of the action. The defendant admitted receipt of the notice on ór about June 4, 1906, whereupon the plaintiff offered it in evidence without making proof that that was before the commencement of the action. The defendant’s counsel objected that no foundation was laid for the admission of the notice, and then proceeded to state several specific grounds, not referring in any way to the omissio'n to prove that the service was prior to the commencement of the action. . It is obvious that the specific grounds stated were assumed by the court and the opposing counsel to be the ones relied upon, and, without suggesting that counsel was disingenuous in thus making the objection, the manner of taking it was almost certain to divert attention from the point now relied upon. The case had been tried once, and the notice had been received in evidence. It is quite obvious that, if the specific objection now relied upon had been made, it would have been obviated, probably, by the admission of counsel; and while the general objection was broad enough to cover the point, we do not think that it justifies or requires the granting of a new trial.

The jury were justified in finding that tlie plaintiff and Haw were in the employ of the defendant; that while the defendant had sublet that part of the contract upon which they were employed at the time of the • accident, he had, by a subsequent arrangement with the sub-contractor, undertaken to perform the labor on the part thus sublet; that'in place of loaning'his men to the'sub-contractor as is now claimed, he in fact retained control and supervision of them; that the sub-contractor’s representative, oné John C. Hall, did not" exercise any authority over the workmen, but only supervised the work to the extent of supplying the technical knowledge which the' defendant’s men did not possess, and that at least there was no change of masters observable by the workmen who were concededlyin the general employ of the defendant.

Haw was plainly a superintendent within the meaning of the statute. He employed the men and directed them in the performance of their work. His sole and principal duty consisted of supervision and direction, though he may occasionally have helped out with his hands.

The movement of the hoist was controlled by the engineer.When the hoist was loaded in the basement -and ready to ascend, a man there signaled the engineer by pulling the bell rope and, when it was ready to descend for another load, a man on the floor where it was unloaded likewise signaled the engineer. An ordinary work-' man had been giving the signals on the day of the accident, but Haw had directed him to do some other work and had temporarily taken his place. The evidence justifies the inference that he had done that for the purpose of hurrying up the men who were taking the loaded barrows from the hoist. One of those men testified: “ He was ordering us around there. He ordered us to get a move on ourselves and shake it up, and was there ringing the bell and giving signals. He had been there at the hod hoist giving signals about fifteen minutes before the accident happened,” Another testified : “ He told us that he was in a hurry and he wanted us to. distribute that stuff around to get ready for the bricklayers to go to work on that floor.”

■ Section 18 of the Labor Law, now chapter 31 of the Consolidated Laws, provides: “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 arid limb of a person so employed or engaged.” Although that statute has been in effect for many years, I am not aware that the words “so * * * operated” have been the subject of judicial construction. -If the statute imposes the absolute duty on the master to run hoists safely, it is immaterial whether the act of giving the signal be treated as one of superintendence. “To operate ” a machine means “ to work the machine, or, in other words, to regulate and control its management and operation.” (Opinion of Ingraham, J., in Gallenkamp v. Garvin Machine Co., 91 App. Div. 141; adopted by the Court of Appeals in 179 N. Y. 588.) Was the statute intended to charge the master with the absolute duty of safely working the hoist? If so, it is strange that that, view has not been suggested before this.. I much doubt that it has been entertained either by the bench or by the bar. It has not been supposed, I think, that where two men were raising or lowering a swinging scaffold, such as is commonly used by painters, the master would be liable for the negligence of one of them, resulting in injury to the other;' and in the familiar hod hoist cases, involving the negligence of the engineer, it has frequently been decided,. without reference, to be sure, to the statute, that the independent contractor, hiring out the hoist and engineer, was solely responsible for the latter’s negligence. (See Genovesia v. Pelham Operating Co., 130 App. Div. 200.) It is permissible to construe the statute' as referring to method. of operation and thus to hold that a duty was imposed by it upon the master .to provide and maintain a safe system or method of operation, though in the case of rapidly moving hoists, used in the construction of high buildings, it is doubtful if that construction would enlarge the master’s duty at common law (see Haggblad v. Brooklyn Heights R. R. Co., 117 App. Div. 838), and the obvious purpose of the statute was to do away with the fellow-servant rule in the cases to which it applies. However, in the view of the case which I take it is unnecessary to decide that question. The defendant was at least chaiged with.the continuing duty to see that the hoist was operated by a proper system or method. . The foreman .or superintendent then had some duties of supervision with respect to the running of it, and it seems to me difficult to divorce that duty and his position as superintendent from a negligent act performed by him in the actual running of it,, even though strictly such act does not have to do with the method, or system of operation. The statute was intended' to reverse the common-law rule that the character of the act and not the grade of the servant doing it determined the master’s liability; and while the master is now liable only for an act of superintendence, or, in the words of the statute, for the act of • a person exercising superintendence,” the grade of the servant doing them ought to qualify and determine the character- of acts in and of themselves doubtful and indeterminate (see McHugh v. Manhattan R. Co., 179 N. Y. 378, 384); otherwise the plain purpose of the statute will be frustrated. Can there be any doubt that Haw was “ exercising superintendence ” at the time of the accident % He was hurrying the men and giving signals to the engineer. Doubtless his premature act in signaling the engineer was due to his effort to hasten the work, at least the jury were justified in. so finding. If, in the effort to do that, he had ordered the signalman to give the signal before the. plaintiff was safely away from the hoist, we should have little difficulty in holding that such order and direction was a negligent act of superintendence. (See Boyle v. McNulty Bros., 129 App. Div. 412.) The negligence complained of consists, not in the manner of giving the signal, but in the fact of giving it at all at such a time. It is unimportant that the giving of signals was a detail of the work which might be, and ordinarily was, performed by an ordinary workman. When given by the superintendent, especially in view of the surrounding circumstances in this- case, they may well be considered as acts of superintendence, precisely as though, instead .of actually giving them, he had directed them to be given. . In a sense, the signal merely conveyed information to the engineer, but, in another sense, it was a direction to him to lower the hoist; and, when given by the superintendent, it is difficult to distinguish between it and a verbal direction given by him. Considering, then, the manner in which this particular work was being done, the position of Haw and his purpose in taking the place of the signalman, the indeterminate character of the act itself and the . absolute duty laid on the master by the statute, at least to provide and maintain a safe method of operation, I think it was at least permissible for the jury to find that Haw’s act. was an act of superintendence. (See Guilmartin v. Solvay Process Co., 189 N. Y. 490; Gallagher v. Newman, 190 id. 444.)

The judgment and order should be affirmed, with costs.

Ingbaham, P. J., McLaughlin and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  