
    John McDonough, Appellant, v. Pelham Hod Elevating Company, Respondent, Impleaded with John Clark, the Name “John” Being Fictitious, etc.
    First Department,
    March 9, 1906.
    Negligence — injury while riding on an elevator used to hoist material — when plaintiff not fellow-servant of engineer — burden on plaintiff to show that he was rightfully upon elevator—failure to sustain such burden.' - --
    The plaintiff, in the employ of a building contractor, was injured while riding on a hod elevator installed in the building for hire by the defendant elevating company, for the purpose of hoisting material.
    
      Held, that the plaintiff, being in the employ of the contractor, was not the fellow-servant of the engineer who ran the elevator and who was employed by the elevating company;
    That, as the elevator waá not intended to carry passengers, the presumption was that the plaintiff was riding on it Without the consent of the defendant, and that the engineer in permitting him to ride was acting outside ,the scope of his authority;
    That the burden was on the plaintiff to show that he was rightfully upon the elevator with the defendant’s permission, express or implied;
    That such implied permission was not shown by the fact that the defendant’s engineer consented that the plaintiff should ride, unless it were within the ■ scope of his authority, which it was not, he being employed only for the special purpose of running the elevator for carrying material and not for carryipg passengers;
    That no custom to carry passengers binding on the defendant was shown by mere evidence that men rode, on the elevator in this particular instance;
    That, as plaintiff had failed to sustain such burden of proof, a dismissal of the , complaint was proper.
    
      Appeal by the plaintiff, John McDonough, from, a judgment of the Supreme Court in favor of the defendant, the Pelham Hod Elevating Company, entered in the office of the clerk of the county of Hew York on the 10th day of January, 1905, upon the dismissal of the complaint by direction of the court as to the said defendant after .trial at the Hew York Trial Term.
    Goeller, Shaffer & Eisler [Robert Goeller of counsel], for the appellant.
    
      Frederick E. Fishel [George Gordon Battle of counsel], for the respondent.
   Clarke, J.:

This was an action to recover damages incurred by the alleged negligence of the defendant in operating a hod elevator which it had .installed for hire in a building in process of erection. ' The plaintiff/ was an employee of the contractor for the erection of the . building. The complaint having been dismissed it will be necessary to consider only the claims made by the-plaintiff to show that the dismissal-was error. We aré all agreed that the plaintiff, the employee of the builder, was not a -fellow-servant of the engineer of the defendant whose négligence is claimed to have caused the injuries complained of. The defendant furnished its elevator, boiler and engineer for an agreed price and there was. no common employer or common employment, -nor was the engineer the servant ad hoc of the builder. (Mills v. Thomas Elevator Co., 54 App. Div. 124; affd., 172 N. Y. 660.)

■ The plaintiff, was injured by the negligence Of the defendant’s servant while riding on an elevator built -and installed for the purpose primarily of carrying, building materials to the -different floors of the building in which plaintiff was at work. In view of the fact that "this1 elevator was installed for the purpose of carrying building ; materials and the further fact that there were on it none of the safety guards or appliances to be found on a passenger elevator, the presumption is that the plaintiff was riding on it without,-the consent of the defendant. -If stich was the case plaintiff cannot recover.* for defendant was under no duty to transport, him from the ground floor of the building to the' floors above, and if the engineer attempted to do so he was acting entirely outside the limits of his authority and the defendant is not responsible for his negligent acts in so doing. The burden is, therefore, upon the plaintiff to show that' he was rightfully upon the elevator, and 'in order to do this, that he was there with defendant’s permission, either express or implied.

It is not contended that plaintiff had defendant’s express- permission to go up on the elevator. Was such permission implied? The presumption is that it was not because this elevator was not built to carry passengers. The plaintiff has not introduced sufficient evidence to overcome this presumption. He says that defendant’s engineer consented to his going up on the elevator., This consent will not avail plaintiff unless the engineer in giving it can be said to have acted within the scope of his authority. He had not express authority to give this consent. Had he implied authority ? He was not a general agent, but an agent put there for the special purpose of running a freight elevator. He was impliedly authorized to do all acts necessary to the carrying out of this special duty. Was it necessary for the accomplishment of this object for the. engineer to carry plaintiff on the elevator? Plaintiff does not claim that he was talcing any materials up with him or to have been on .there for the purpose of keeping materials from falling off the elevator, or for the purpose of unloading the elevator when it got to the upper floors. He was on there simply for the purpose of getting to the sixth floor of the building. Clearly, carrying him on the elevator was in no way necessary for the accomplishment of the object which the engineer was intended to carry out.

Appellant contends that the engineer was put here by the defendant for the purpose of aiding in. the quick construction of this building, and as carrying the plaintiff on the elevator enabled him ■ to get more quickly to his work the engineer was acting within the scope of his authority. The answer to this argument is that the engineer was not put there for the purpose of doing everything that would aid in the quick construction of the building, simply those things in the line of his duties as an engineer of a freight elevator.

Appellant contends that, the contract being silent as to whether or not passengers should ride on the elevator, the contract was subject to the known usages of the business and that it was shown that carrying passengers was customary in this business.. The. answer to'" this argument is that there is no- evidence in the record of a general custom df this nature; the 'only evidence is to the effect that the paen did it in this instance, which is not evidence of a general custom in the business which should have been known to the defendant at the time it supplied this elevator, Appellant contends that since the men rode on" this elevator openly and notoriously for •weeks Without the objection of the defendant, and not knowing the nature of the engineer’s instructions in the matter, defendant is estopped to deny the engineer’s authority and to claim that plaintiff was not lawfully on .the elevator. There .are two difficulties with this argument, first, that the cases cited in support of it are all cases of contracts made by the agent outside the scope of his authority where the. principal has reaped the benefits thereof, and I have been unable to find any case which .applies the doctrine of agency by "estoppel to a case of this* kind. The"other difficulty with the argument is that this is not a case, in which the plaintiff has been misled by the agents’ acts into believing that the defendant authorized him to ride on this machine, for the machine Was obviously dangerous, and- that the plaintiff realized the danger is shown by his confessed reluctance to'.riding "on it.

. The- only case cited" by appellant. which approaches an authority in favor of his contention is Stringham v. Stewart (100 N. Y. 516). That was a case in which plaintiff was injured while, riding on a grain elevator. It appeared in, evidence that plaintiff was in-the employ of defendant, who owned the elevator, and that defendant’s superintendent had directed the servants employed in moving grain to. ride on the elevator while doing their work» It also appeared that oh the trip in which plaintiff Was injured he put on a load - of grain and went up- with it fo'r -the purpose of taking.it off the elevator. In so doing lie was working for the benefit of- the defendant. . These facts' are sufficient to" show that the case is not an authority in point. In thé case atibar the plaintiff was not directed' by-the-engineer-of the defendant to go up on the elevator, and in going up'on the elevator he could not be said to be in anyway acting "for the benefit of defendant, whose servant, he- was not.

"In Eaton v. D. L. & W. R. R. Co. (57 N. Y. 382) it was held that conductors of freight trains cannot create any liability on the part of their principal to a person taken by them on snch trains unless the principal in some way assents to it, and that duty to be careful toward him could only spring up on the part of the principal by an act on the conductor’s part coming within the scope of his authority. The cáse of Morris v. Brown (111 N. Y. 318) seems t° he directly in point. In that case a civil engineer employed by the aqueduct commissioners got upon a car operated by the defendant as contractor for the construction of a tunnel at the Croton dam. The cars were operated by a stationary engine and cable to draw material out' of a shaft. By the omission of defendant’s servant to attach the cable to the car, or otherwise control its velocity, the decedent was thrown off and killed. Judge Daneobth, speaking for an unanimous court,, said: “ As they (the cars) were not furnished for such use, so there was no permission from the defendants or any one of them that they might be so used. But'it is said this permission might be implied, because the intestate and others had before ridden upon the cars. Without permission from or duty on the part of the defendants to give it, I cannot see how that result follows. On the contrary a person so using the car at each time took upon himself the risk and must abide by its condition and the quality of the attendant at the time he so used it, and was entitled only not to be led into danger.

“Negligence is an omission of care and caution in what we do. But the duty to be actively cautious and vigilant is relative, and where that duty has no existence between particular parties there can be no such thing' as negligence in the legal sense of the term. The plaintiff was in no position to complain - of the defendants or their servants. The frame and dump the intestate got upon was not a vehicle for his carriage, but an instrument of labor, a mere implement furnished by the defendants to their servants, as they might have provided a man with a basket or barrow, or a mule with panniers, to take out the refuse, as in former times was the custom in doing such work. * * * The plaintiff had a right to be in the tunnel for its inspection. The contract put the defendants under no obligation to carry him into the tunnel, nor by it did-he acquire any right to be upon the car. Nor did he acquire that right through any consent or act or acquiescence on the part of the defendants. All the. witnesses agree that no permission was given by the defendants; no evidence tehds to 6ho.w that they even knew the car was at anytime so used. The brakeman of the car had known it, but neither his knowledge nor assent could bind the defendants. Hei was not their agent for. that purpose. It is a general proposition that a master is chargeable with the "conduct of his servant only when-he acts in the execution of the authority given him. * * * The deceased had, in fact, ridden upon the car; he had done so under no other permission, a volunteer, but in safety. In each instance, however, he must be deemed to have assumed the- risk, and this last time he was unfortunate. The consequences -of that misfortune should not be thrown upon the defendants.”

The judgment should be affirmed, with costs.

O’Brien, P. J., Patterson, Ingraham and Laughlin,, JJ., concurred. ■ '

Judgment affirmed^ with costs. Order filed.  