
    PATRICK DERVIN, Appellant v. HENRY HERMAN, et al., Respondents.
    
      Negligence—Master and servant—Liability of master for injuries caused by defective condition of elevator.
    
    In an action to recover for injuries alleged to have been caused by the negligence of defendants while plaintiff was employed by them, it appeared that when plaintiff was employed, he was referred by one of the defendants, to C., a co-employee, for instructions as to his duties, among which was closing the store at night; that C. told him to fasten certain doors by using the elevator, that on the clay of the accident, in pursuance of his custom and of said instructions, he got on the elevator for that purpose and started it, but was unable to stop it, and it continued to go up, and crushed him between the door and the platform of the elevator, causing serious injuries. It further appeared that at that time, the elevator was being repaired, of which defendant was ignorant, and that the person employed by defendants to make the repairs had, on stopping work for the night, detached the connecting rod, so that the elevator could be started, but could not be stopped, and that in such condition it was unsafe for use.
    
      Held, that a dismissal of the complaint was error; that the evidence was sufficient to support findings that plaintiff was authorized or directed to use the elevator as he did, and that the accident was caused by the unsafe condition of the elevator, for which the defendants are liable; and further, that the question of plaintiff’s contributory negligence, should have gone to the jury.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 3, 1888.
    Appeal from judgment entered on the dismissal of the complaint on a trial before a jury.
    
      Nelson Smith and G. Washhourne Smith, for appellant.
    
      Horwitz & Hershfield, for respondents.
   By the Court.—Ingraham, J.

The plaintiff, an employee of the defendants, was injured on an elevator in the store of the defendants. At the time of the accident, the elevator was being repaired, and the person employed to make the repairs, had on stopping work for the night, detached the connecting rod, so that the elevator could be started but could not be stopped, and in such condition it was unsafe to be used. The plaintiff whose duty it was to close up the store, and who had been in the habit of using the elevator when engaged in that duty, got on the elevator for that purpose and started it, but was unable to stop it, and it continued to go up and crushed him between the door and the platform of the elevator, causing very serious injuries..

The plaintiff testified that when he commenced work, one of the defendants referred him to Campbell, the shipping clerk, to instruct him as to his duties, among which was closing up the store. Campbell told him to fasten certain iron doors by using the elevator, and he used it on the afternoon in question, in the same way as instructed by Campbell; that he had no knowledge that the elevator was being repaired, and had not been notified that it was unsafe and not to be used.

At the close of the plaintiff’s case, the court dismissed the complaint, and from the judgment entered on such dismissal, the plaintiff appeals.

The evidence would sustain a finding of the jury that the plaintiff was authorized, or instructed, by the defendants, to use the elevator in the manner that he did, in the performance of the duty which he was employed to perform, and that the accident was caused by reason of the unsafe condition of the elevator at the time of the accident'. It was the duty of the defendants to use reasonable care and caution in providing for the use of their employees suitable tools and machinery, and to maintain such machinery in repair. Fuller v. Jewett, 80 N. Y. 53. And if, through the neglect of that duty on the night of the accident, plaintiff was injured, without fault on his part, we are unable to see why defendants would not be liable. That this accident did happen by reason of the unsafe condition of this elevator, and that such unsafe condition was caused by the act of the person employed to repair the elevator, is established by the evidence. The responsibility of the defendants for the acts of the person employed by them to repair the elevator, is firmly established in this state. “ The acts which the master, as such, is bound to perform for the safety and protection of his employees, cannot be delegated, so as to exonerate the former from liability to the servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance, or misfeasance, is that of a superior officer, agent or servant, or a subordinate or inferior agent or servant, to whom the doing of the act, or the performance of the duty has been committed¡ In either case in respect to such act or duty, the servant who undertakes or omits to perform is the representative of the master and not a mere co-servant with the one who sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury. Fuller v. Jewett, supra.

The master cannot exempt himself from liability for the omission of this duty, by delegating its performance to another, or, having required work to be done, by omitting precautions and inquiries as to the time and manner of its performance : and the negligence of the master, co-operating with that of a servant, in producing injury to a co-servant, renders the master liable. Benzing v. Steinway, 101 N. Y. 552.

The unsafe condition of this elevator was caused by the act of the person employed to repair it, and who left it in such an unsafe condition that Avhen once started it could not be stopped. For the act of that person the master Avas responsible.

The question of contributory negligence on the part of the plaintiff, Avas a question for the jury, and on the case as it stands, we think the court erred in dismissing the complaint.

The judgment must be reversed, and a new trial ordered, Avith costs to the appellant, to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.  