
    Concetta Bartolomeo et al., as Administrators of the Estate of Joseph Bartolomeo, Deceased, Appellants, v. Charles Bennett Contracting Company, Inc., Respondent.
    (Submitted February 25, 1927;
    decided March 29, 1927.)
    Master and servant — negligence — presumed that general employer retains control of its employees in absence of proof to contrary — party having control must respond for negligence of servants • — ■ steam shovel hired with engineer and fireman to run it — injury to workman through operation of shovel — erroneous holding, as matter of law, that engineer and fireman were servants of hirer of shovel and that owner and general employer was not liable for their negligence.
    1. In the absence of proof that a general employer surrendered Ci ntrol over its employees with respect to giving orders as to care of machinery and the right of discharge for disobedience of such orders, it must be presumed that its power of control continued. The party possessing the power to exercise such control, rather than the party having authority to designate the place and time for the performance of the work, is the master who must respond for the negligence of the servants.
    2. Where, therefore, a contracting firm hired from defendant a steam shovel with an engineer and fireman to run it and, in an action to recover for the death of an employee of the contractor, alleged to have been occasioned through the negligent operation of the shovel, it appeared that the engineer and fireman had previously been hired by the defendant, had been in its employ for many months, that defendant continued to pay their wages after they had been set to work for the contractor, and paid with its own funds for the fuel necessary to operate the shovel, while the contractor directed the engineer where to make excavations but gave no directions as to the details of the work, it was error to hold as matter of law that the engineer and fireman were the servants of the contractor and that the defendant was not hable, as master, for their negligence.
    
      Bartolomeo v. Bennett Contracting, Co., 218 App. Div. 826, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 13, 1926, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.
    
      William A. Schacht for appellants.
    The evidence establishes the facts, that the steam shovel was being used in the furthering of the defendant’s business; that the operators thereof were engaged in the defendant’s work and that no such surrender of command, of the servants, had taken place, so as to create a new relation. (Braxton v. Mendelson, 233 N. Y. 122; Charles v. Barrett, 233 N. Y. 127; McNamara v. Leipzig, 227 N. Y. 291; Johnson v. Netherlands A. S. N. Co., 132 N. Y. 576; Standard Oil Co. v. Anderson, 212 U. S. 215; Cattini v. American Ry. Express Co., 202 App. Div. 336; 234 N. Y. 585; Murray v. Dwight, 161 N. Y. 301; Hanrahan v. New York Edison Co., 212 App. Div. 295; 238 N. Y. 194.)
    
      Abraham Kaplan and David A. Ticktin for respondent.
    The evidence indicates that the defendant neither operated nor controlled the steam shovel which caused the decedent’s death and hence there was no error in dismissing the complaint upon the merits. (McNamara v. Leipzig, 227 N. Y. 291; Miller v. North Hudson Contr. Co., 166 App. Div. 348; Standard Oil Co. v. Anderson, 212 U. S. 215; American Express Co. v. O’Connor, 279 Fed. Rep. 997; Byrne v. Kansas City, Ft. S. & M. R. Co., 61 Fed. Rep. 605; Powell v. Construction Co., 88 Term. 692.)
   Kellogg, J.

This action was brought by the administrators of the estate of Joseph Bartolomeo to recover damages for his death. Bartolomeo was an employee of a firm of contractors known as the Powers-Kennedy Company. That company had a contract to make an excavation for the construction of an underground railway tube. In the prosecution of its excavating work it employed a steam shovel. The shovel was owned by the defendant. It consisted, in part, of a cab, housing a steam boiler and engine, and a long boom carrying a bucket at its end. When the machine was in operation, the cab, the boom and the bucket made a partial or complete revolution. On a certain morning, before the steam shovel had started to operate, Bartolomeo was at work upon a ledge, with his back to the shovel. While he was in this position, without warning, according to some of the proof, the machinery of the shovel was set in motion and the shovel began to turn. As the shovel revolved, some part of the machine struck Bartolomeo a blow which caused his death. The complaint charged that the defendant " failed to notify the said Joseph Bartolomeo of their intention to operate, manage, use, employ, exercise and control the said steam shovel.” The answer,admitted that Bartolomeo was”" struck upon his head by a steam shovel owned by this defendant, whereof he died.” The trial judge dismissed the complaint upon the ground that the steam shovel was operated, not by the defendant, but by the Powers-Kennedy Company, and that the men operating the shovel were the servants of the latter rather than of the former. Upon this appeal the point is not made that the defendant, not being the master of Bartolomeo, owed to him no duty of giving a warning that the shovel was about to operate. Neither is the point made that the record is devoid of credible evidence to the effect that no warning was given; nor that a failure to give warning did not constitute negligence which caused the death of Bartolomeo. The respondent opens its brief with the following sentence: The sole question involved on this appeal is whether the defendant, respondent, Charles Bennett Contracting Company, Inc., operated and controlled the steam shovel which it is conceded fatally injured the plaintiff’s intestate.” We will, therefore, consider that question and none other.

In negotiating with the defendant for the use of the steam shovel John Kennedy, a member of the Powers-Kennedy Company, said to Charles Bennett, the president of the defendant: I don’t want to be bothered with the hiring of engineers or firemen or anything. I want a price for 'the shovel and two men to operate it, and we will put it in the work and take care of it, furnish the gangs necessary to run it in the hole and pay so much a day for it.” Accordingly, the defendant provided the shovel, with an engineer and fireman to run it, at the agreed price of $65 a day. The enginéer and fireman had previously been hired by the defendant, had been in its employ for many months and were thoroughly familiar with the process of operating the shovel. The defendant continued to pay their wages after they had been set to work upon the excavation in question. The defendant likewise continued, with its own funds, to pay for the fuel necessarily employed to operate the shovel. The Powers-Kennedy Company, after the shovel had been placed upon the work, directed the engineer of the shovel where to make excavations. It gave no directions as to the details of the work, such as firing the boiler, regulating the steam pressure, applying the levers to start and stop the machinery, maneuvering the boom and bucket, oiling the machinery or giving care to the steam shovel to keep it in working order. It was important to the defendant, as the owner of the machine, in order that the life of the machine might be preserved, that the engineer and fireman, in respect to these and other details, perform their work with care, skill and judgment. When originally employed the engineer and fireman subjected themselves to the orders of the defendant in respect to all such matters and became liable to discharge at the defendant’s hands if its orders were disobeyed. In the absence of proof that the defendant, the general employer, surrendered control, in these respects, to the Powers-Kennedy Company, as special employer, it must be presumed that the defendant’s power of control continued. (Charles v. Barrett, 233 N. Y. 127.) The party possessing the power to exercise such control, rather than the party having authority to designate the place and time for the performance of the work, is the master who must respond for the negligence of the servants. (Matter of Dale v. Saunders Bros., 218 N. Y. 59; Matter of Schweitzer v. Thompson & Norris Co., 229 N. Y. 97; McNamara v. Leipzig, 227 N. Y. 291; Charles v. Barrett, supra; Matter of Sullivan, 202 App. Div. 854; affd., 234 N. Y. 552.)

In McNamara v. Leipzig (supra) the owner of an automobile, for an agreed price, rented the same to the defendant, and furnished the services of a chauffeur, for the period of three months. The car was to be used by the defendant at any hour of the day or night as desired by him. The owner agreed to pay the wages of the chauffeur, to furnish all gasoline and supplies, and to pay for all repairs to the automobile. It was held that the chauffeur was not the servant of the defendant and that the defendant was not hable for damages caused by his negligence. The court said: “A servant lent or let by his master to another does not become the servant of the other because the other directs what work is to be done or in what way it is to be done. If the servant remains subject to the general orders of the person who hires and pays him he is still his servant, although specific directions may be given him by the other from time to time as to the work to be done.” In Charles v. Barrett (supra) the owner of automobile trucks supplied the defendant with a van, and a chauffeur to run it, at a stated hourly rate. The defendant used the truck to make deliveries in its express business. It was held that the chauffeur was not the servant of the defendant to make the defendant liable for his negligence. The court said: Where to go and when might be determined for the driver by the commands of the defendant. The duty of going carefully, for the safety of the van as well as for that of wayfarers, remained a duty to the master at whose hands he had received possession.” In Matter of Sullivan (supra) a manufacturer, in connection with its manufacturing business, operated a farm. It engaged the owner of a gasoline engine and ensilage cutter, at an hourly price, to help fill its silo with ensilage through the aid of his machinery and his own labor. Testimony was given that the manufacturer’s foreman told the owner how to run his machine and how to cut the ensilage. Nevertheless it was held that the owner was not the servant of the manufacturer. These cases clearly establish that it was error, in this case, to hold as a matter of law that the engineer and fireman were the servants of the Powers-Kennedy Company and that the defendant was not liable, as master, for their negligence.

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

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.

Judgment accordingly.  