
    George H. Brennan, App’lt, v. Read Gordon, Jr., Resp’t.
    
      (New York Common Pleas,
    
    
      Filed December 6, 1886.)
    
    1. Negligence—Res ipso loquitur—When maxim not applicable.
    The maxim Res ipso loquitur has no application in the case of an accident which is claimed to have happened through defendant’s negligence where the cause of the accident is known to a certainty.
    
      2. Employees—Not liable to servant for damages arising through
    NEGLIGENCE OF AN EMPLOYEE WHO IS FELLOW SERVANT.
    Where plaintiff, while in defendant’s employ, is injured hy an accident, he cannot recover damages from his employer if it was caused hy the negligence of his fellow servant.
    3. Same—Only when employee is acting as the master..
    The mere fact that a foreman may now and then employ a man for his master’s service does not make him at all times the alter ego of his master. In order that plaintiff may recover damages from his employer for an accident arising through the negligence of such foreman, it is necessary that he should prove that he was at that time engaged in the performance of an act that properly fell within the sphere of duties that the law imposes on a master;
    The defendants, who were packers and preservers of fruit, moved into a building in Greenwich, street, in which a new elevator had been constructed for their use under the immediate charge of one Mulcahy, by whom it was used, and he signified his intention in February, 1881, to instruct the man who was going to úse it. The plaintiff was designoted for that purpose. The evidence shows that ne did receive instructions from Mulcahy, and had entire charge of it on the day upon which the accident' occurred. On March first two beams were placed upon the elevator by Mulcahy and his assistants, which were to be used on the top floor of the building. At the same time a brother of the defendant and Dilworth placed another beam on the car to go to the top floor. The evidence shows that he directed the plaintiff to go to the third floor and stop. The car being stopped level with the third floor, Dilworth left it, directing plaintiff to remain there until he, Dilworth, should reach the top floor.
    The testimony is conflicting as to whether or not these instructions were obeyed. After the two beams which Mulcahy had put upon the car were taken off, Dilworth reached the top floor, and was about to take off the beam placed by him on the car when it started; the end of the beam' struck the roof, and one of the two clutches operating the drum broke and the elevator fell to the cellar below, whereby the plaintiff suffered the injury for which he now sues.
    Upon a previous trial the complaint was dismissed, but the general term of this court, upon appeal, held that the case should have been submitted to the jury, which was subsequently done, and a verdict rendered for the defendant, and from the judgment entered upon that verdict this appeal is taken. ,
    
      Edward P. Schell, for app’lt; Edward C. James, of counsel; Kitchell & Jeliffe, for resp’t.
   Larremore, C. J.

The general term of the court, upon the authority of the Railroad Co., v. Fort (17 Wallace U.S., 554); Mann v. Delaware, etc., Co. (91 N, Y., 500), held that in-this case the instructor of the plaintiff did not occupy to him the relation of a company servant, but that he was a representative of the master who was answerable for his incompetency or negligence.

The questions of fact in the case appear to have been fairly submitted to the jury, and the special findings directed by the court in an alternative form could not, in my judgment, have affected the conclusion which the jury finally reached in their general verdict.

Some stress is laid upon a portion of the charge, which is as follows:

If upon the whole case you were satisfied the defendants were not in fault, and you conclude to render a verdict for them, you need not answer any of these questions.” Devizes, Mayor, etc., v. Clark, 3 A. and E., 506.

This seems to be no substantial error, and could not have possibly misled the jury. They passed upon the material issues in the case and decided in defendant’s favor, and I. find no error upon the trial for which it should be disturbed. See 3 A. and E., 506.

The judgment appealed from should be affirmed, with costs.

Van Hoesen, J.

I am in favor of affirming the judgment, though I do not feel called upon to express concurrence in all that was said by the judge at the trial. My reason for voting to affirm is, that I think that upon the undisputed evidence the defendants were entitled to a verdict.

First. It is indisputable that a finding that the elevator was unsafe or defective in any respect, would have been not merely without evidence to support it, but against all. the evidence in the case. No recovery upon the ground that the defendants neglected to provide machinery suitable for the use of their servants could have been sustained. Gerlach v. Edelmeyer (47 Supr. Ct., 292), on which the plaintiff relies, has no applicability to the facts of this case. That case applied to the well known maxim Res ipso loquitur, where an elevator fell without any apparent cause. The court held that as ordinarily an elevator properly constructed and properly managed does not fall, and as that elevator did fall, the presumption was that there was something wrong, either with the elevator or with the-management of it, and that that presumption would warrant a verdict for the plaintiff unless it Were rebutted by the defendant’s evidence. Here the cause of the elevator’s fad is known to a certainty. It fell because it was broken by violence. It was negligent to apply that violence. The mom who did the mischief was seen in the very act of doing it. There is no room for speculation, conjecture or legal presumption. The elevator, properly built and in good condition, was broken through the fault of a workman. Unless the plaintiff and Mulcahy committed perjury, the cause of the accident is not unexplained, but, notwithstanding this, the counsel for plaintiff contends that if they did commit perjury, the plaintiff is nevertheless entitled to recover, because there is no explanation except theirs, and if that be false we must say, Res ipso loquitur.

I can imagine a case in which the plaintiff could recover though the account he gives of the circumstances that caused his injury might be completely disproved; but in such a case, other testimony, whether adduced by him or by the defendant, would prove his cause of action. But here the defendants do not establish the case for the plaintiff, and he must fail, if the facts that he and his witnesses have sworn to, do not show his right to recover. The accident was caused by carelessly sending the elevator up towards the roof with great force, with a heavy beam in it that projected above the elevator, and reached down to its floor. The strain was so great, that some part of the structure had to give way, and when one of the appendages broke, the elevator fell, and carried the plaintiff down with it. The question in the case was, who caused the elevator to move toward the roof when it ought to have remained stationary? The plaintiff and Mulcahy swore positively that they saw, actually saw Harry' Dilworth, one of the defendants servants, seize the elevator rope, and send the elevator upward. It is true that Harry Dilworth denies that he did so, but we must assume, for the purpose of the appeal, that the plaintiff’s story is- true. Harry Dilworth was one of several superintendants, or working foremen, that the defendants had in their employ. Though Harry’s act were negligent, the plaintiff could not recover if the' negligence were that of a fellow workman. Seeing this „ difficulty, the plaintiff attempts to show that Harry was not a fellow servant, first, because he sometimes hired and employed workmen, and secondly because he had been detailed by defendants to initiate the plaintiff, in the art and. mystery of operating the elevator. There is no evidence that the plaintiff was hired by Harry, nor does it appear what class of workmen Harry occasionally employed. It may be, that he merely hired laborers by the hour, or only when specially authorized by the defendants. The mere fact that a foreman may now and then employ a man for his master’s services, does not make him at all times, and for all purposes, the alter ego of his master. This is shown by the case of Neubauer v. Railroad Co. (101 N. Y., 607), where Frampton, the foreman carpenter of the railroad, who hired some men, and sometimes suspended them, was-held to be, after all, only a fellow-servant of Neubauer, the plaintiff, who was injured while working in one of the gangs, under Frampton’s orders. See also, Hoppin v. City of Worcester, 2 East. Rep., 384.

If the plaintiff wished to hold the defendants liable, on the ground that Harry stood in their place as master, he was bound to prove something more than that he was one of several floor bosses and that he sometimes hired or discharged men; he was bound to prove that at the time he started the elevator on its unfortunate ascent, Harry was engaged in doing an act that properly fell within the sphere of duties that the law imposes on the master. Woods Master and Servant, 890.

But it is said by the plaintiff that Harry was his instructor, and had not yet finished his teachings. There is very strong evidence that Mulcahy, not Harry, was the plaintiff’s teacher, but we must assume that Harry did, by defendants’ orders, undertake to instruct him, and that the plaintiff was still his pupil. The defendants would, undoubtedly, be hable if Harry neglected his duty, either by failing to impart instruction properly or by injuring the plaintiff while in the act of instructing him. But the evidence shows an entirely different state of things. Harry was not engaged in the office of teaching, but in the menial labor of assisting in getting a beam in its proper place. When he started the elevator he was acting as the defendants’ servant, and was only the fellow servant of the plaintiff. For his negligence under those circumstances the defendants are not hable. The case of Crispin v. Babbett (81 N. Y., 616) is directly in point, and is controlling. That case was approved in Neubauer v. Railroad Co., cited supra. See also Hoppin v. City of Worcester, cited supra, which holds the same doctrine.

Upon the plaintiff’s own evidence, therefore, it clearly appears that he was not entitled to recover. He has no reason to complain of any error committed in the course of trial that did not prevent him from presenting competent evidence that he offered. I have looked through the exceptions, and I do not discover that any proper testimony that the plaintiff attempted to introduce was rejected..

The judgment should be affirmed, with costs.

Bookstaver, J., concurs.  