
    Maurice P. Jossaers, Respondent, v. Alva S. Walker, Appellant.
    
      Negligence—injury to the workman of an independent contracto^'while on the top of an elevator—direction of the owner to'go there—negligence of the elevator man — a request that a question he submitted to the jury precludes a claim that it was a question of km for the court.
    
    The owner of a hotel employed a contractor to put a refrigerating plant in it. The contractor sent a workman to do the work who, by the direction of the owner of the hotel, made an arrangement with a man acting for the owner, in charge of an elevator in the hotel, under which the workman got on top of the elevator, and was to be notified by the elevator man when it was moved up or down. This the elevator man neglected to do, in consequence of which the workman was injured.
    In an action brought by the workman against the owner to recover for such injury the workman recovered a verdict.
    
      Held, that such verdict would not be set aside.
    A request, made upon the trial of such an action by the counsel for the defendant, that the court charge the jury that, if the plaintiff and the elevator man were fellow-servants there could be no recovery, amounts to a request for the submission to the jury of the question whether they were fellow-servants, and, hence, the defendant cannot, when the court has so charged, subsequently insist that the court erred in not instructing the jury, as matter of law, that they were fellow-servants.
    Appeal by the defendant, Alva S. Walker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of July, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover damages for personal injuries caused by the defendant’s alleged negligence. The defendant was the owner of a hotel in the city of New York known as the Hotel Beresford, into which a Buffalo firm was putting a refrigerating plant. The plaintiff’s employer, one Craig, a carpenter, sent him to the building upon the day in question in order to do certain work in and about the elevator shaft of the hotel, which work was incident to the putting in of the refrigerating plant. He made an arrangement with the defendant’s elevator man whereby he was permitted to get upon the top of the elevator, and the latter notified him when he was about to move it up or down. The elevator man neglected to so notify him upon one occasion, and the sudden starting of the elevator caused the injuries for which the plain tiff sought to recover. A verdict was rendered in favor of the plaintiff, but, upon appeal to the Appellate Division, the judgment entered thereon was reversed and a new trial ordered. (See 14 App. Div. 303.) On the second trial the plaintiff recovered a verdict for the sum of $2,500, and from the judgment entered thereon, and from-the order denying the defendant’s motion for a new trial, this appeal is taken.
    
      Alexander Thain, for the appellant.
    
      Sumner B. Stiles, for the respondent.
   Rumsey, J.:

When this action was before us upon an appeal from a former judgment, it was held that the plaintiff could not recover upon the facts then made to appear, because he had failed to show that the defendant consented to the use of the elevator for the purposes of a scaffold, or had any knowledge that it -was to be devoted to such use. (Jossaers v. Walker, 14 App. Div. 304.) That defect in the proof has been remedied upon this trial by the testimony of Mr. Mash, who was the erecting engineer for the company which had the contract to put in the ice machine upon which the plaintiff was engaged when he received the injury of which he complains. Mash, who was not a witness upon the former trial, testified that when he was talking with Mr. Walker and Mr. Wyman, his manager, regarding the carpenter work in the elevator shaft, he explained to them what it was necessary to do and they directed him to use the elevator shaft for the purpose. He says he explained about standing on the elevator so that the work might be done, and they directed him to put boards across it so as not to stand on the wire screens. He said further that they were to furnish an elevator man to hoist the elevator, who was to attend to hoisting or lowering it when it was to go up or down. It is quite true that this testimony was contradicted both by Walker and Wyman, but at the close of the evidence there was a fair question for the jury whether Walker had not consented to the use of the elevator for the purpose to which the plaintiff was putting it at the time he received the injury, so that the defect in the plaintiff’s case was fully cured.

There remained to be examined, then, only the exceptions taken during this trial. The defendant claims that there was no sufficient evidence of negligence on his part to be submitted to the jury. The proof tended to show that the plaintiff was to use this elevator as a scaffold upon which to stand while he was doing his work in the shaft, and that the elevator was to be raised or lowered as might be necessary to enable him to do his work. It was made to appear by the testimony that the defendant gave instructions that the elevator man would make the necessary arrangements for operating the elevator to enable the plaintiff to do what he had to do. The manner in which it was to be operated was agreed upon between the two men. As the defendant furnished the elevator and the man to operate it, he was liable for any failure on the part of his servant who operated the elevator to manage it properly; and if the accident came about because of the failure of the elevator man to use reasonable care in the way in which he raised or lowered the elevator while the plaintiff was upon it, the defendant is undoubtedly liable. That the injury was so caused the jury might well have found upon the evidence.

But it is said that the plaintiff and Paxton, the elevator man, were fellow-servants, and that the defendant is not liable for any injury caused to the plaintiff by the negligence of a fellow-servant. The last proposition of law is undoubtedly true, but no such question was presented in this case. The court was requested by the defendant’s counsel to charge that, if at the time of the accident the plaintiff and the elevator man were fellow-servants during the performance of this work in the elevator shaft, either for Craig or the refrigerator company or the defendant, the plaintiff could not recover; and that proposition was charged precisely as requested by the defendant’s counsel. It amounted to a request to submit to the jury the question whether or not Paxton and the plaintiff Avere fellow-servants, and the defendant having asked that that question should be submitted to the jury, and not having asked for any ruling upon the law as to whether the evidence showed that they were fellow-servants, he is not now in a situation to complain that the court erred in treating the question precisely as he was requested to treat it.

The court had submitted to the jury the question whether Paxton had any authority to make arrangements in behalf of the defendant for the use of the elevator by the plaintiff during the progress of the work, and had instructed them that if Paxton had no such authority their verdict must be for the defendant. The court was requested to charge that Paxton had no authority to make any such arrangement, but that request was refused, and this refusal is insisted upon as error. Nash testified, in so many words, that he was told by Walker, or by Wyman in Walkers presence, that the elevator man would make the necessary arrangements for the use of the elevator whenever the plaintifi was called upon to use it in his work; and although that testimony was denied, yet there was sufficient to submit to the jury on that point, and for that reason the exception was not well taken. The jury might have found that the plaintifi was referred to Paxton to make whatever arrangements were necessary with regard to hoisting or lowering the elevator at the time in question, and the court did not err in what was said to the jury in that behalf.

Whether the plaintifi was guilty of contributory negligence was clearly for the jury to determine. Upon the whole case, while the evidence was not conclusive, yet there was clearly enough of it to require the case to be submitted to the jury, and as there was no error in that submission the judgment and order must be affirmed, with costs to the respondent.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment and order affirmed, with costs.  