
    George Bower, Respondent, v. E. Holbrook Cushman and Others, Appellants, Impleaded with Another.
    
      Negligence in the use of an elevator — injury to a painter from its counterweight— his right to rely on an agreement to give notice of the moving of the elevator—proof that the person operating it had never operated one before.
    
    In an action brought to recover damages for personal injuries, it appeared that a building in process of construction for the defendants by independent contractors had almost reached completion; that the defendants, by their tenants, had taken possession of a portion of the building, and that two elevators, designated as No. 1 and No. 2, were operated under the control of the defendants’ superintendent; that the plaintiff was a painter in the employ of an independent contractor, and that the defendants’ engineer agreed with the plaintiff’s foreman that the plaintiff should do some painting on the ninth floor of the elevator shaft; that it was arranged that the plaintiff should stand on a plank reaching from the floor entrance of the elevator on the ninth floor to the window sill in the space through which elevator No. 1 ran; that that elevator would not be operated, and that elevator No. 2 would be operated as little as possible; that one Cody, who was employed by the defendants to run the elevator, should shout a warning to the plaintiff before moving elevator No. 2, so that the plaintiff would have an opportunity to avoid being struck by the counterweight, which was at the tenth floor when the elevator was at rest on the ground floor; that on the occasion of the accident, Cody, without any warning, or without a timely warning, to the plaintiff, started the elevator for the purpose of carrying some men who came to see the defendants’ engineer and superintendent, and that the descending counterweight struck and injured the plaintiff. j&M.lthat a verdict in favor of the plaintiff should not be disturbed;
    That it could not be said, as matter of law, that it was negligence for the plaintiff to place some reliance upon the arrangement made with Cody, and to assume that he would be informed in some way before the menacing counterweight would be set in motion;
    That evidence that Cody had never operated an elevator before might be considered in determining whether he was negligent on the occasion in question, although negligence could not be predicated upon that fact of itself.
    Appeal by the defendants, E. Holbrook Cushman and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of March, 1900, upon the verdict of jury for $5,000, and also from an order entered in said clerk’s office on the 19th day of March, 1900, denying the defendants’ motion for a new trial made upon the minutes.
    
      The plaintiff was in the employ of one of the independent contractors who were engaged in constructing the building referred torn the opinion.
    
      John S. Melcher, for the appellants.
    
      Abram H. Dailey, for the respondent.
   Hirschberg, J.:

The judgment was obtained by the plaintiff, a painter, for injuries-sustained while he was engaged in painting the windows on the-ninth- floor in an elevator shaft of a building belonging to the-defendants on the corner of Maiden lane and Broadway, in the city of Hew York, borough of Manhatan. The building was not. entirely completed at the time, but the contractors’ workmen left-every day at five o’clock p. m. The elevators, however, had been put in and were running in charge of the defendants’ engineer and superintendent. They were used in part, at least, by prospective-tenants, and one tenant was already in possession. The defendants’" engineer and superintendent arranged with the plaintiff’s'foreman that the painting should be done after five o’clock. In order to do the work the plaintiff stood on a plank reaching from the floor, entrance of the elevator on the ninth floor to the window sill. There were two elevators running in the shaft, designated as Ho. 1 and Ho. 2. . The arrangement was that the plank should be placed in the space through which elevator Ho. I ran, and that that elevator would not be operated; and that elevator Ho. 2 would' be operated as little as-possible. When either elevator was in operation its counterweight moved up and down in grooved bars set three-quarters of an inch from the window, and as they were heavy and moved rapidly, the-plaintiff’s position was necessarily one of danger. In order to secure his safety it was agreed that the defendants’ servant Cody, in charge, of the actual running of the elevator, and who had been employed but two day's before, should shout a warning to the plaintiff before-moving elevator Ho. 2 so that he would have opportunity' to avoid' being struck by the counterweight .of that elevator. When this-elevator was at rest on the ground floor of the building, its counterweight was on the tenth floor. While the plaintiff was engaged at-work the elevator Ho. 2 was started from the ground floor, either without any warning or without a timely warning from Cody, and the descending counterweight striking the plaintiff, inflicted the injuries of which he complains. None of the other mechanics were in the building at the time, and Cody started the elevator for the purpose of carrying some men who came to see the defendants’ engineer and superintendent.

The testimony was contradictory, but the above statement is an adoption of those facts which the jury could have found, and must have found, in support of the verdict. Such facts, with others justified by the proof, presented the questions of the defendants’ negligence and the plaintiff’s freedom from fault, and afford no ground for interference with the result. The case of Mills v. Thomas Elevator Co. (54 App. Div. 124) was a similar one in many respects, and we there held that the negligent starting of the elevator by the servant in charge of it rendered his master liable to one who. as in this instance, did not bear towards him the relation of a fellow-servant. Cody was not ■ only in the defendants’ general employment at the time of the accident, but he was then engaged in their business, and was subject to their direction and dbntrol. The court submitted to the jury the question whether Cody was employed by the defendants and engaged in their work at the time, and this disposition of the question was certainly favorable to the defendants. As to contributory negligence, the only point suggested is that the painting could have been done with- ■ out the plaintiff’s assuming a position of risk, but this question under the proof was clearly one of fact and not one of law. Whether he could have accomplished his work without exposing himself to danger was in dispute, while there is abundant proof that the contrary was recognized by the parties in the arrangement that timely warning should be given him in case it was found necessary to operate .the elevator while he was in the shaft. It cou'-d not be said as matter of law to be negligence on the part of the plaintiff to do his work in reliance to some extent upon this arrangement, and to assume that he would be informed in some way before the menacing counterweight would be set in motion.

Cody admitted- substantially that he had never run an elevator before. The court charged that the jury could take that fact in consideration in determining whether he was negligent on this occasion. In this there was no error. The fact was legitimately in evidence, and the jury was entitled to give it that weight, if any,, which, in the minds of practical men, it would bear upon the main .question of fact to be determined, viz., whether or not he did start the elevator without giving warning. The court further charged in that connection that “no negligence can be predicated upon the idea that Cody was incompetent,, unfit or too inexperienced to operate the elevator.” The exception, therefore, has no relation to the cases cited by the appellants in which incompetency has been improperly shown by general reputation. Here there was no question of incompetency, but only an alleged failure to exercise care charged against ■ one who, for the first time, was engaged in the work at hand.. The inexperience was an undisputed fact, and while no negligence could be predicated upon it of itself, the defendants were not entitled to an instruction that the jury should ignore it as a fact.

It is urged that it was error to strike out Cody’s evidence given on cross-examination to the effect that he had no instructions to halloa before he started the elevator. He had testified to this in substance on his direct examination, and the ruling of the court where the testimony .was stricken out was that it was not responsive. In the absence of the question, • we cannot say that this ruling was not correct.' The evidence being in the case, however, in another part of the-testimony of the witness, the appellants were not prejudiced by the ruling, even if erroneous.

_ The other rulings challenged in the, appellants’, brief have been examined, and none found to be erroneous.

The judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs.  