
    Patrick McGuirk, Respondent, v. The Manhattan Life Insurance Co., Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Master and servant — Liability for injuries to third persons: Acts not within the contemplation of master; Contributory negligence of person injured.
    Where defendant’s servant, without authority, directed plaintiff, at work upon defendant’s building, to get on a freight elevator which he had loaded with materials; and it appears that a sign, in plain sight, warned passengers not to ride; that the elevator had been inspected weekly and worked properly the day before the accident and immediately after, in an action to recover for injuries caused by the elevator’s tipping to one side want of reasonable care on the part of the defendant is not established
    Appeal by the defendant from a judgment of the City Court of the city of ¡New York, • entered in favor of -the plaintiff after a trial before the court and a jury.
    
      Nadal & Oarrere (William D. Stiger, of counsel), for appellant.
    Francis 0. Devlin (George Ball, of counsel), for respondent.
   Gildersleeve, J.

The action is for personal injuries. The jury found for the plaintiff in the sum of $450. Defendant appeals. The uncontradicted evidence is substantially as follows, viz.: Plaintiff was working on defendant’s' building. He loaded, with materials, a freight elevator which went from the engine-room up to the sidewalk on Broadway. He then got onto the elevator himself, and one “Fred,” an employee of defendant, set the elevator in motion on its upward course. It tipped to one side and caused plaintiff to slip and hurt his right foot, which got jammed between the platform of the elevator and “the bed of the engine or some connections attached thereto.” The elevator had been inspected a week before by defendant’s engineer, and found to be in good condition. It was again examined immediately after the accident and found to be in good condition, and worked well. There was a sign nailed to the wall to the west of the platform of the freight elevator, warning “passengers” against riding on said elevator. The plaintiff did not see the sign, although it was in plain sight and had been there for a long time. “ Fred ” told plaintiff to get on the elevator. “ Fred ” was merely an “ oiler ” in defendant’s employ, with no authority tc give such .directions. The plaintiff says it was necessary for some one to go up on the elevator to open the doors upon the sidewalk. , He went up on said elevator, when empty, just before the accident and opened the doors. He then descended and, having loaded the elevator as aforesaid, went up again on it, with the load, and met with the injury. Plaintiff says that his foreman was one Spellman, and not “ Fred.” He says Spellman told him “to put certain steam fittings on the elevator and take them up to the sidewalk,” but he does not say that Spellman told him to ride himself on the elevator with the steam fittings. “Fred,” who ran the elevator, did not himself ride upon it; he remained in the subcellar. The plaintiff claims that the doctrine res ipsa loquitur applies. Assuming this claim to be well founded, it raises a presumption of negligence on the part of the defendant which has met it by showing weekly inspections of the elevator, and that the same worked properly immediately after the accident, and that nothing seemed to be wrong with it. It had worked well the day previous to the accident. Spellman swears he called out to the plaintiff not to get on the elevator, -but that plaintiff did not seem to hear him, as there was considerable noise. It is also shown that it was not customary for men to go on the elevator when loaded. The sign, above mentioned, read: “Ho passengers allowed to ride.” Under the above evidence which stands uncontradicted it seems' to us that the absence of reasonable care on the part of the defendant is not established; that the verdict is not supported by the evidence and should not stand. Hubener v. Heide, 73 App. Div. 200.

Davis and Clihch, JJ., concur.

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