
    Hartley A. Haigh, Respondent, v. The Edelmeyer and Morgan Hod Elevator Company, Appellant.
    First Department,
    January 10, 1908.
    IxTegligenee — death by fall of elevator — when, lessor not bound to inspect—-res ipsa loquitur — failure to produce broken structure in. court—trial—improper reference to fact that defendant was insured.
    The lessor of an elevator used for the construction of a building, who merely installs the same, leaving it to be used and operated by the lessee without a specific agreement to inspect or repair the same unless called upon to do so, is not liable for the death of an employee of the lessee caused by the fall of the elevator in the absence of evidence that the part which broke was of improper construction or defective material.
    
      In such action a judgment for the plaintiff "will be reversed where the court refuses to instruct as to the extent of the defendant’s obligation.
    The fact that the “head-piece” of the elevator, consisting of beams supporting the hoisting wheel, broke after some weeks’ use by the lessee is not evidence that it was defective or unsafe when installed by the lessor.
    No inference that such head-piece was defective can be drawn from the fact that three years after the accident the defendant was un'able to produce the broken piece in court.
    It is reversible error for the plaintiff’s attorney to persistently bring before the jury the fact that the defense was being conducted by an insurance company.
    Appeal by the defendant, The Edelmeyer and Morgan Hod Elevator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 15th day of April, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s offide on the 17th day ■ of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank V. Johnson, for the appellant.
    
      Carlisle Norwood, for the respondent.
   Scott, J.:

The plaintiff has recovered a judgment for the damages resulting from serious injuries caused by the falling of a hod elevator owned by defendant, From this judgment the defendant appeals. The plaintiff was a foreman in the employ of a firm of masonry contractors engaged in erecting two buildings in the city of Mew ■ York. These contractors rented from defendant a hod .hoisting elevator, which was used to carry bricks, mortar and other material to the several floors of the building. The elevator was sp constructed that it could be used to carry either hods or wheelbarrows. When the accident occurred it had brought two wheelbarrows to the fourth floor of one of the buildings. It was contended by defendant that plaintiff was riding on the elevator when it fell. The plaintiff denied this, and since the jury on conflicting evidence has necessarily found in plaintiff’s favor upon this issue, we accept his versión, which was that while the elevator was at rest he undertook to take one of the wheelbarrows off the elevator, standing for that purpose with one foot on the platform of the elevator, and the other on the floor of the building, when suddenly the elevator fell to the bottom of the building, carrying- him with it.

The elevator was raised and lowered by a cable which ran to what is termed a head-piece, carrying a wheel over which the cable ran, thence to another wheel at the end of the head-piece, and tlience down through the building and out to the street, where it. was operated by a stationary engine.

The immediate cause of the fall of the elevator was the breaking of the head-piece. What caused it to break does not appear. It was constructed of two planks about nine inches wide and two inches thick, held apart by separators and firmly bolted together. The wheel over which the cable ran was between these planks resting upon them. There was no evidence as to any agreement between the contractors and defendant as to whose duty it should be to inspect the elevator while under hire by the contractors. When a hod-hoisting elevator was hired it was the custom of defendant to install it in the building, leaving it to be used, operated and handled by the contractors to whom it was leased, and their employees. The defendant had nothing more to do with it, except that, as the building progressed, it would upon notice send its riggers to shift the ' head-piece up to another story and put in additional lengths of guides for the elevator to run upon. This particular elevator had been in the building for some weeks, and there was evidence that at times it had been used to carry excessive weights, above its designed capacity. There is no evidence that the headpiece which broke was improperly constructed, or that its material was defective, or that there were any apparent defects either in the head-piece or other parts of the machine. The principal question in the pase was as to the measure of the defendant’s obligation. Was it bound only to see that the elevator when installed was of proper material and properly installed, or was it charged with the duty of continuous care and inspection? The court in its charge did not attempt to instruct the jury specifically upon this point, saying only that it was the duty of the defendant to exercise reasonable care and precaution to see that the elevator and the apparatus connected therewith were reasonably safe for the uses for which they were furnished. Further than this the court did not define the limits of the defendant’s duty and responsibility. The defendant requested the court to charge that the plaintiff had no cause of action against the defendant unless the jury found from the evidence that the head-piece which broke and caused the accident was defective and improperly constructed when it was last placed and installed in position by the defendant herein, and that the accident was directly attributable thereto. The court declined to so charge and the defendant duly excepted. In our opinion the request was a proper one and it was error to refuse it. Under the agreement between the contractors by whom plaintiff was employed there was nothing so far as appears which required the defendant to keep the elevator and its several parts in repair, or to keep it under inspection for the purpose of discovering defects which might develop by reason of its use. A case presenting a very similar question came before the Court of Appeals in King v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 181). The defendant in that case owned a derrick which was placed on a dock and used for transferring rails from boats to cars. It made a contract with one Dillon by which the latter agreed to unload from barges and vessels and place upon cars all rails belonging to defendant which might arrive during a certain period. Dillon was to have the use of defendant’s derrick. There was a dispute as to who was to keep the derrick in repair, plaintiff claiming that defendant had agreed to do so, and defendant claiming that its agreement was that it should make repairs when it was notified by Dillon that they were necessary. It did not appear that the derrick was not in good repair when the contract was made. In time the hook supporting the gaff or boom and the tackle of the derrick became worn, and broke while transferring a rail, falling upon plaintiff and-causing the injuries complained of. The court had charged the jury in effect that it was the duty of the railroad company not only to see to it that the derrick was suitable and proper when furnished to Dillon, but also to keep it in order while it was in use by Dillon under his contract. An exception to this instruction brought before the Court of Appeals the very question presented by the request to charge in the present case, which is quoted above, and which was refused by the trial judge. The Court of Appeals, speaking through Judge Andrews, held that the jury had been erroneously instructed ;■ that in the absence of any contract on the defendant’s part to keep the derrick in repair, it had performed its full duty when it furnished a derrick suitable and safe at the time for use, and that as a general proposition the owner of an implement or piece of machinery may lawfully allow another to take and use it,, and if, in using it, it becomes defective and causes injury to a third person, the owner is not liable. The same principle, as we consider, governs the present case. It was undoubtedly the defendant’s duty in the first instance to furnish an elevator which was safe and suitable for the uses to .which it was to be put, and we think that when it was called upon from time to time to shift tfle head-piece from one floor to another it was its duty to inspect it to see whethér or' not it continued to be a safe and proper appliance to use. Beyond this, in the absence of a special agreement, it was under no obligation to inspect or repair unless called upon to do so. The defendant was entitled to have .the jury properly instructed as to the extent of its obligations, and the failure to so instruct it requires a reversal of the judgment. There was no evidence that the liead-.piece was defective or unsafe when installed. Certainly the mere fact that it broke was not such evidence (Dougherty v. Milliken, 163 N. Y. 527; Duhme v. Hamburg-American Packet Company, 184 id. 404), nor can any inference to that effect be drawn from the fact that three years after the accident the defendant was unable to comply with plaintiff’s demand that the pieces of the broken head-piece should be produced upon the trial. The. plaintiff’s counsel repeatedly and persistently, without rebuke from the court, brought before the jury the fact that the defense was being conducted by an insurance company. This fact was not relevant to any issue in the case, and could have been emphasized for no other purpose than to give plaintiff an unfair advantage before the jury. This practice has been repeatedly condemned by this court and the Court of Appeals, and in the present case was carried to an extent which would have necessitated a reversal of the judgment, even if' the record had presented no other reversible error.

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

McLaughlin, Houghton and Lambert, JJ., concurred; Patterson, P- J-, concurred in result. •

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  