
    Mary Croghan, as Administratrix, etc., of John Croghan, Deceased, Appellant, v. Hedden Construction Company, Respondent.
    Second Department,
    December 15, 1911.
    Master and servant — negligence — death, through fall down elevator shaft — method of operating appliance — erroneous charge — Employers’ Liability Act — foreman empowered to give signals. '
    In a negligence action brought against an employer to recover damages resulting from the death of an employee who fell down the shaft of an open platform elevator used to transport material in a building under construction while he was attempting to board the elevator for the purpose of removing material therefrom, it is improper for the court to charge that “ if a manner of operating the hoist was one in common general use at the time in the locality where such operations were going on by many contracting concerns, then it must be held to have been a proper one.”
    When the foreman of laborers engaged in removing materials from such elevator, and under the duty of giving signals governing the movement of the elevator, is not a superintendent within the meaning of the Employers’ Liability Act discussed.
    
      Appeal by the plaintiff, Mary. Oroghan, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 6th day of April, 1910, upon the verdict of á jury, and also from an order entered in said clerk’s office on the 11th day of May, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Thomas J. O’Neill [L. F. Fish With him on the brief], for the appellant.
    
      Edward J. Redington [Amos H. Stephens with him on the brief], for the respondent.
   Woodward, J.:

Plaintiff’s intestate, a man of twenty-three years of age, was employed in November, 1909, as one of a gang of laborers engaged in unloading mortar and bricks from an elevator used in the construction of a twenty-story building in the city of New York.' The hoist was an open platform elevator. The shaft was closed on two sides upon each floor, and on the other two sides bars were erected, one about six feet high and the other about midway between' the upper bar and the floor, this .latter béing removed while the materials, carried in wheelbarrows, were being unloaded. On the fifth floor of the building, at the time of the accident, some building stones had been placed near the south side of the elevator shaft, which was one of the open sides, and these were so near the opening that there was a space of only from nine to eighteen inches between the open shaft and the stones, and it was claimed by the plaintiff that her intestate had been ordered by the defendant’s superintendent to take a place .upon this narrow space and to await the coming of the elevator with the materials, and to take them off by stepping upon the elevator at the .south side and wheeling. them off to the north side. It seems that several trips of the elevator had been made to the fifth floor, where plaintiff’s intestate had performed his work, and that at the particular trip where the accident occurred one Flynn had signaled from the ninth floor that he needed materials, and one Gallagher, who appears to have been á foreman of-.the.particular small gang in which the plaintiff’s intestate was at work, gave a signal to the engineer to take the load on up; that for some reason the engineer halted" the load at the fifth floor for a moment and then started it rapidly on its joúrney to the ninth floor without giving warning, and that the plaintiff’s intestate, in attempting to get onto the platform to wheel off the barrow, in some way lost his balance and fell to his death down the shaft. The learned trial court submitted to the jury the question of whether Davis, the superintendent, had in fact given the order for the plaintiff’s intestate to take a place between the stones and the edge' of the elevator shaft, this being in dispute, upon the theory that this would constitute negligence on the part of defendant’s superintendent, and charged that the act of Gallagher in giving the signal for the engineer to carry the load to the ninth floor was the act of a fellow-servant for which the master was not liable, although this act of negligence, if it was merely a contributing negligence, could not operate to defeat a recovery if the alleged" negligence of the superintendent in giving the order to take a position near the shaft was a proximate cause of the injury. ’This was practically charged again, though in a different aspect, at the request of the plaintiff’s attorney, who declared that “in.order to clear up this entire situation I ask your honor to charge the jury this, that if the jury find that the defendant’s method of operating the hoist required or permitted the men to go upon the hoist, and if the jury finds that it was a negligent method, then the defendant is guilty of negligence even if the negligence of Gallagher concurred in causing the injury,” and the court responded: “I so charge if they find such negligence was the proximate cause of the accident.” Plaintiff’s counsel said: “If it concurred' with it and helped to cause it,” and the court responded, “Tes.”

Upon this appeal plaintiff urges that Gallagher was the superintendent of the defendant, and that his act in signaling the engineer to carry the load to the ninth floor was the proximate cause of the accident, but this theory was not presented upon the trial. The charge of the court in respect to Gallagher’s relation to the accident was not questioned, and it is too late to urge it now, even if it had merit. But it is without merit; Gallagher was merely a member of a gang of laborers, with the duty assigned to him of giving the signals, and he was entirely lacking in. any of the elements of a superintendent, liberal as have been the constructions in this respect put upon the Employers’ Liability Act (Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 et seq.).

We. might be of opinion, therefore> that the judgment should be affirmed, except for the fact that the learned trial court erred in its charge to the jury in instructing them that “if a manner of operating the hoist was one in common general use at the time in the locality where such operations were going on by many contracting concerns, then it must be held to have been a proper one.” What other contractors were doing might be some evidence of what constituted a proper hoisting device, but a hoisting device which was in fact' dangerous to life and limb beyond the reasonable necessities of the work could not, as a matter- of law, be regarded as a proper device simply because others were using the same style-of apparatus.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  