
    August Pelzel, Respondent, v. Leopold Schepp, Appellant.
    
      Negligence—assurance toan employee engaged in doing work in an elevator shaft that the elevator will not be operated — liability of one causing it to be operatedbelween whom and the employee injured because thereof, the relation of employer and employee does not exist — when the question of negligence is not one of law, but is a question of fact for the jury.
    
    In an action brought to recover damages for personal injuries, it appeared that the plaintiff was an employee of one Bader who had been employed by the defendant to place a pipe in an elevator shaft in a building in the defendant’s possession, and that in order to do this work a platform of planks was constructed in the elevator shaft at the ninth floor of the building.
    The plaintiff’s evidence tended to show that during the progress of the work the defendant visited the plaintiff and told him to stop working as it was necessary to use the elevator; that the platform was taken out of the elevator shaft and that in about a half an hour the defendant again visited the plaintiff and told him that he might again commence his work as the elevator would not run any more; that the platform was then replaced and the plaintiff resumed his work; that while the plaintiff was so engaged the defendant, without notifying the plaintiff, instructed the elevatorman to continue running the elevator, but not to go higher than the eighth floor; that while the elevator was being operated in accordance with these instructions the descending counterweights of the elevator struck the plaintiff’s foot and injured it.
    Testimony was also given tending to show that the defendant knew of the danger to which the moving counterweights would subject the plaintiff, but that the plaintiff was not cautioned by any one in respect thereto.
    
      Held, that it was error for the court to charge that, if the defendant assured the plaintiff that the elevator would not be operated, and notwithstanding this assurance caused ^he elevator to be operated, he would be guilty of negligence as matter of law;
    That, in view of the fact that the relation of employer and employee did not exist between the plaintiff and the defendant, the question whether the defendant was guilty of negligence was one of fact for the jury to determine.
    Patterson, J., dissented.
    
      Appeal by the defendant, Leopold Schepp, 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 27th day of December, 1902, upon the verdict of a jury for $7,250, and also from an order entered in said clerk’s office on the 7th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      H. Snowden Marshall, for the appellant.
    
      Levin L. Brown, for the respondent.
   Ingraham, J.:

The plaintiff was in the employ of one Bader, who was employed, by defendant to repair the plumbing in a building in his possession. As a part of this work it was necessary to put a pipe through an elevator shaft at one of the upper floors of the building. On November 17, 1899, while this work was being done, the elevator Was operated below the story at which the plaintiff was at work, ■and as the elevator ascended the counter weights descended, crushing the plaintiff’s leg.

To do this work it was necessary to construct a platform inside the elevator shaft. For this purpose planks were used to cover the shaft, upon which the plaintiff was instructed by Bader to work. The plaintiff and his fellow-laborer went to work, tore out the old pipe preparatory to putting in the new pipe. The plaintiff testified that while he was at work the defendant came and told him to stop working, as it was necessary to use the elevator. The men stopped, the boai'ds were taken off, and the plaintiff went upon a fire escape to make a fire to melt the solder to be used in replacing the pipe. In about half an hour the defendant came to the plaintiff and said : “Now, yon can recommence again to work'—-the elevator will not come any more.” The men then replaced the plank across this elevator shaft and resumed their work. While thus engaged the plaintiff heard an outcry and turned around to see what was the matter, when the counter weight in the elevator shaft descended and caught his right foot, crushing it so that it had to be amputated. The man in charge of the elevator testified that he was present when the plaintiff came to work; that he refused to allow him in the elevator shaft as the elevator was running; that at about half-past ten the defendant came and was told by the witness that two tinsmiths had got there about eight o’clock and wanted to go to work, but that he (the witness) had refused to allow them to work because it was dangerous and not a fit place for them to work while the elevator was running; to which the defendant said : “ Take me up. I will explain it to you — show you how it can bo done;” that when the. defendant and the witness got to the floor the witness explained the situation, told the defendant that when the car was in the basement his counter weights were overhead, and that when the elevator was at the store the weights would then be seen even with the floor at which plaintiff was to work; that the defendant then told the witness to go ahead and run the car, but not to go up to the ninth floor at which these men were at work, but to run the car from the eighth floor all the way down; that some time after the witness was instructed by the defendant to load the elevator and to take the load to the fourth floor ; that he took this load to the fourth floor, and took off the load, when he was instructed to get a bag; that he went down, put the bag upon the elevator and started up again; that as the elevator was ascending he felt a jar through the car; that the defendant had told the witness that he would watch at the ninth floor and take care of the men where they were at work ; that the witness then saw the defendant who said: “ That man is hurt. * * * Why didn’t we do as you said ? ” The plaintiff also testified that no one cautioned him about these counter weights.

On behalf of the defendant, the plaintiff’s employer, Bader, testified that he was doing the work for the defendant; that there was a leader running across the back of the elevator shaft at the ninth floor, and that he was repairing this leader; that the plaintiff took the old leader out; that the defendant was there, and it was at his suggestion that these planks were placed across the elevator shaft for the men to work on; that while the men were at work the elevator was operating on the lower floors; that he told the plaintiff that this was a dangerous job, but did not call his s¡>ecial attention to the counter weights; that while the elevator was in operation the weights moved up and down, and that he then warned the plaintiff to look out for them; that the defendant was not upon the floor when the accident happened; that the defendant did not warn either the witness or the plaintiff about these counter weights, and at the time of the accident the witness was working opposite the elevator, behind the wall, soldering the pipes there, and in the position that he was in he could not see the plaintiff. The defendant then testified that he had a talk with Bader, but had no talk with the plaintiff; that he was down at the office at the time of the accident, having been upon the ninth floor but three or four minutes when he first got to the store; that he told Bader not to allow the men to work where there was any danger and that he sent the planks up to enable them to do the work; that he thought it was safe to run the elevator on the lower floors while the men were working on the ninth floor; that he did not think of the danger of the counter weights at the time and gave no instructions about the running of the elevator.

The court, in charging the jury, predicated the plaintiff’s right to recover upon the jury’s believing “ that the defendant informed him (plaintiff) as he was about resuming work in the elevator shaft upon the ninth floor, that the elevator would not be run while he was so at work ; and that, notwithstanding such information, the elevator was run, and that in consequence thereof the plaintiff lost his leg. * ' * * If yon believe that the defendant informed the plaintiff that the elevator would not be run while he was working in the shaft, then the plaintiff had a right to rely thereon; and, if the defendant did run the elevator so as to cause the injury complained of, the defendant was guilty of negligence. If, on the other hand, you do not believe that the defendant informed thejilaintiff that the elevator would not be so run, then the only duty owed to the plaintiff under such circumstances was that of ordinary care while the plaintiff was so doing work in the elevator shaft. In that event, you will consider and determine from the evidence whether or not the defendant did exercise such care. If you believe that the defendant did exercise such care, you will find in his favor. On the other hand, if yon find that he did not, you will decide whether or not the plaintiff was guilty of contributory negligence.” The defendant specifically excepted to the charge that if the jury believes that the defendant informed, the plaintiff that the elevator would not be run, then the plaintiff had a right to rely upon such information ; and if the defendant did run the elevator he was guilty of negligence; ” and it is this exception that presents the serious question in the case. The result of this instruction was that the defendant, as a matter of law, was held guilty of negligence if he told the plaintiff that the elevator would not be run, and notwithstanding that information the elevator did run. It is conceded that the elevator was run during the time that the plaintiff was at work, and that the accident was caused, not by the elevator striking the platform or the plaintiff, but by the descent of the counter weights in the elevator shaft as the elevator went up from the cellar to or above the store floor. I do not think, as a matter of law, it was negligence for the defendant to run this elevator below the place that the plaintiff was at work during the time that he was working there. I agree with the plaintiff that this was a question fort-lie jury; that, considering the conditions, if the jury believed that the defendant’s attention had been called to these weights and to the danger that they would be to a man working upon the ninth floor in the elevator shaft if the elevator was running, and that notwithstanding the defendant instructed his employee to run the elevator, without warning the men at work of the danger, they would have been justified in finding negligence. But that was not what the court charged. The instruction was that if the jury found that the defendant told the plaintiff that the elevator would not run while he was at work, and notwithstanding it did run, and because of its running the plaintiff was injured, then the defendant was guilty of negligence. Negligence is a conclusion of fact to be drawn from the existing conditions at the time of the injury. There was no contractual relation between the plaintiff and the defendant, and there was not imposed upon the defendant the duty that is imposed upon a master to furnish his servant with a safe place to work and proper appliances with which to do the work. The plaintiff was under the control of his employer, who was present and at work with him upon the premises at the time of the accident. Upon the plaintiff’s employer devolved the duty of furnishing him with a safe place in which to work and the proper appliances with which to do the work. The duty that was imposed upon the defendant was that he should not be guilty of negligence which would cause injury to those at work in the building, and it was a violation of this duty which would justify a recovery against him. It certainly was not, as a matter of law, negligent to operate this elevator on the lower floors while the plaintiff was at work in the elevator shaft. The fact that these counter weights would rise and fall as the elevator was used was perfectly apparent from the situation. All that the men working in the shaft had to do was to keep their feet away from the side wall of the elevator shaft where these counter weights ascended and descended. The defendant denied having any conversation with the plaintiff, and denied that his attention was called to the counter weights, or any danger that would result to any one working in the shaft from them; and while 1 think there was a question for the jury, and that if they found that the defendant had assured the plaintiff that the elevator would not he run, and, notwithstanding such assurance, he gave instructions to run it after his attention had been called to the danger of these counter weights, it was for them to determine whether, under the circumstances, he was négligent. While the question of negligence was for the jury, it was error for the court to charge that any act of the defendant, in view of the relation of the parties, was, as a matter of law, negligence, and, for this reason, we are required to reverse the judgment.

It follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Bbien, McLaughlin and Laughlin, JJ., concurred; Patterson, J., dissented.

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