
    John Casper Martin, Appellant, v. Russell R. Cornell, Jr., and Theodore H, Ward, Trading as Cornell & Ward, Respondents.
    First Department,
    February 4, 1910.
    Master and servant — negligence — fall down elevator shaft — assurance of foreman that elevator would await plaintiff’s return — acts óf . superintendence. '
    Tike foreman in a factory ran an .elevator to tlie third floor and directed the per, son employed to run it to deliver a bundle, stating that he would wait until ■ his return and take him to an upper floor. It wás dark about the elevator door and the employee on his return, finding it open and the guard chain down, attempted to step upon the elevator and fell to the bottom of the shaft, the car having been moved to an upper floor. Held, that in view of said assurance of the foreman, the plaintiff was not guilty of contributory negligence as a matter of law in attempting to step upon' the elevator without first ascertaining whether it was there.
    The act of the foreman in moving the elevator without putting up the guard chain or closing the door was the act of a fellow-servant for which, the master was not liablb, as running an elevator involves, no element of superior duty, ■supervision or command. Hot so, however, the direction to deliver the bundle and the assurance by the foreman that he would await the plaintiff’s return, these being acts done by virtue'of his authority as superintendent so as to be chargeable to the master under the Employers’ Liability Act.
    Appeal by the plaintiff, John Casper Martin, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Mew York on the 23d day of June, 1909, upon the dismissal of the complaint by direction of the court at the .close of plaintiff’s case on a trial at the Mew York Triad Term.
    
      Charles Goldsier, for the appellant.
    
      Bertrand L. Pettigrew, for the respondents.
   Miller, J.:

The plaintiff was employed to run an elevator in the defendants’ factory. The foreman got into the elevator with him and ran it up to the third floor where the plaintiff had a bundle to deliver. The plaintiff testified that the foreman said to him, “you deliver that bundle and I wait for you till you come back and you take me up to the fourth floor.” The plaintiff delivered his bundle) returned to the elevator shaft and finding the chain down and the d.oór partly open, he attempted to step upon the elevator and fell to thei bottom of the shaft. In the meantime the elevator had been run' up to the fourth floor, presumably by the foreman. It was dark about the opening into the .shaft. In view of the assurance of thé foreman that he would.wait for him the .plaintiff was not guilty of contributory negligence as matter of law in attempting, on finding' the chain down and the door open, to- step upon the elevator without first ascertaining whether it was there, and so we come directly to .the question whether the plaintiff was injured in consequence' of a negligent act of superintendence. The action is brought under the Employers’ Liability Act. , ‘

Independently of the direction and assurance of the foreman his act in moving the. elevator without putting up the chain or closing the door was the act of a fellow-servant for which the master would not be liable. The running of the elevator involved no “ element of superior duty, supervision or command ” (See Gallagher v. Newman, 190 N. Y. 444), but not so the direction and assurance given by the foreman.. Those were acts done by virtue of his .authority as such. As superintendent lie commanded the plaintiff what to do and% assured him that the elevator would remain at the third floor until his retui'n to it. Having given that assurance he could not as a fellow-servant ignore it and move the elevator, leaving the chain down and the door open, thus giving- an appearance of having kept liis word. The ..act of pulling'the rope to start the ¡elevator and the omission to put tip the chain and close the door may have been acts of a fellow-servant, but the disregard of the assurance given as superintendent was' a. violation of duty as such. In; view of that assurance and direction, the foreman owed the plaintiff the duty as foreman either not to move the elevator or, at least, if'.he did move it, to close the opening so as to warn him when lie returned that it had been moved. To distinguish between the negligence of the foreman in disregarding.his assurance.to the plaintiff arid his negligence as a fellow-servant in actually moving the elevator: without putting up the chain or closing the door would, require ia, splitting of hairs which we are not disposed to indulge in.' . ; ¡

The conclusion that, in’the view'of the evidence'most favorable to the plaintiff, he was injured in consequence of a negligent act or omission of superintendence, is supported by the decisions of our Court of Appeals and of the Supreme Judicial Court of Massachusetts. (McHugh v. Manhattan R. Co., 179 N. Y. 378; McBride v. N. Y. Tunnel Co., 101 App. Div. 448; 113 id. 821; affd., 187 N. Y. 573 ; Guilmartin v. Solvay Process Co., 189 id. 490; Gallagher v. Newman, supra ; McPhee v. New England Structural Co., 188 Mass. 141.)

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event,

Ingeaham, P. J., Lattghlin, Clabke and Scott, JJ., concurred.

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