
    Janet Simpson, as Administratrix, etc., of Thomas Simpson Deceased, Appellant, v. Frederick Gerken, Respondent.
    
      Negligence—putting the planks of a scaffold through the loop of a rope hanging from an elevator.
    
    Proof that workmen, employed by a contractor in an elevator shaft, unneces- ' sarily so constructed a scaffold that the boards passed through the loop of a rope hanging from the bottom of the elevator car, which was several stories above them, and which, when raised by the operator, who was unaware of the construction of the’scaffold, and had only been directed not to lower the elevator while the.work was in progress, tightened the rope and tore.away the scaffold, establishes gross negligence on the part of the workmen, and the owner of the building is not liable for the death of one of their number from a fall so caused.
    Appeal by the plaintiff, Janet Simpson, as administratrix, etc., of Thomas Simpson, deceased, from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the. clerk of the county of New York on the 8th day of March, 1897, upon the dismissal of her’ complaint by direction of the court after a trial at the. New York Trial Term.
    
      William O. Campbell, for the appellant.
    
      Perry D. Trafford, for the respondent.
   Rumsey, J. :

The defendant, at the time of the happening of the facts set out-in the complaint, was the owner of a large building, situate at the corner of Chambers street and West Broadway, known as the Gerken Building, consisting of abont fourteen stories, which was let out to-tenants for office purposes. The defendant operated an elevator in-connection with the building for the carriage of passengers. In the: month of April, 1896, the plaintiff’s intestate, with other workmen* was engaged in putting window frames in the elevator shaft in that’ building. They were at work upon the sixth story. To do the-work it was necessary that they should have a scaffold upon which, to stand within the elevator. While the carpenters were at work, putting in these window frames, painters were also at work in .the* elevator in the stories above. The painters had been taken upon the top of the elevator, which was moved from time to time sufflciently to enable them to work at different heights on the inside of the shaft. The elevator, at the time of the death of the plaintiff’s intestate, was at the eleventh floor. To the bottom of the elevator, near the center, was attached, one end of a rope, the other end of which was fastened into the elevator shaft at the eighth story, so that as the elevator stood at the eleventh story the bight of the rope formed a loop hanging down below the place where the plaintiff’s intestate was at work. The plaintiff’s intestate, with his companions, had made a platform by extending plank through the door of the elevator from the floor to a shelf on the back of the shaft. These planks were' put in the loop formed by the hanging rope. As they stood upon the plank the elevator was hoisted and the loop caught in the plank, upset the platform and the plaintiff’s intestate fell to the bottom of the shaft, receiving injuries which caused his death. Upon the trial of this action, brought to recover damages against the owner of the building for alleged negligence in permitting the elevator to be moved when the plaintiff’s intestate was at work in the shaft, the complaint was dismissed, and from the judgment entered upon the order dismissing the complaint this appeal is taken.

There was no pretense that the defendant himself was present at the building at any time, or that he personally was guilty of any negligent act which tended to bring about the killing of the p.lain-tiff’s intestate. The negligence relied upon was claimed to be that of Dunscomb, who was superintendent of the building under the defendant, or of Flannagan, the elevator man, whose act in moving the elevator upwards was the immediate cause of the fall of the plaintiff’s intestate. It appeared that the foreman, of the gang of men in which Simpson, the intestate, was working, directed the building of the platform in the manner in which it was built. He had told Dunscomb, the superintendent, that he proposed to do this work in the shaft on that day, but there was no claim that Dunscomb had any knowledge that the work was to be done at the particular time, and no claim that he was requested to give any directions with regard to the movement of the elevator or to do any act for the protection of the workmen in the shaft. All the proof on that subject is that Dunscomb was told by the foreman that he proposed to do the work on Saturday, to which he replied, “ All right.”

Flannagan, the elevator man, who was sworn as a witness in behalf of the plaintiff, testified that he Was told by the foreman that the work was about to be done that morning, and he was asked not to move the elevator down on top of the men who would be at work in .the shaft below. His reply was that he would not move it down, and it is in proof that the elevator was not moved down, but that the accident was caused by moving it up sd that the loop caught in the planks which .had been put through it for Simpson to stand upon. There is no claim that Flannagan knew that this platform had been made by putting the planks through the loop, and it is quite clear that there was no necessity of' so doing to make the platform, because the rope which was a light one,- might easily have been pushed to one side so -as to'pass by the planks as the elevator moved up, and run no risk of catching them and tipping over the platform. That this was not done was not known to Flannagan, and there is no pretense that he had any information that the platform would be so made as to render it dangerous for him to move the elevator up. In fact, in view of the conversation which was had, that he should not.move the elevator down oh top of the men working underneath, it is quite clear that he had no reason to suppose that there would be any objection to his hoisting the elevator whenever there was any reason to do so. We are unable to discover in the' evidence any act on the part of Flannagan or Dunscomb which can be construed to be negligent so far as the men working in the shaft were concerned. We are' quite clear also that the workmen themselves were guilty of contributory negligence in placing the planks as they did in the loop of the rope. It was clearly unnecessary so to do and the thing which occurred was precisely the thing which would have been-expected to occur if the elevator had been hoisted. There was no reason on their part,.so far as the evidence shows, to suppose that it would not be hoisted whenever it was necessary to do so, and the plainest dictates of prudence should have suggested to them that it was not .safe to put these planks through the bight of the rope and thus subject themselves to the danger of being upset in case the elevator was hoisted. There is nothing in any of the exceptions to the ruling of the court upon evidence, which could harm the plaintiff in view of the undisputed facts. -

Upon the evidence,, as it is disclosed by the record, it is very clear that not only was there no negligence on the part of the defendants, but that the persons building the scaffold, who were the co-employees of plaintiff’s intestate, were guilty of gross carelessness.

For these reasons, the order of the court dismissing the complaint was correct, and judgment should be affirmed, with costs.

Yan Brunt, P. J., O’Brien, Ingraham and Parker, JJ. concurred.

Judgment affirmed, with costs.  