#### George H. Brennan, App’lt, *v.*Read Gordon, Jr., *et al.,*Resp’ts.1

*(Court of Appeals, Second Division,*

*Filed February 25, 1890.)*

1. Negligence—Master and servant—Elevator.

The duty devolves upon a master of a servant hitherto serving in the *830capacity oí a common hand laborer, before such laborer shall be put in charge of dangerous machinery, such as an elevator, to instruct and qualify him for such *new*duty.

2. Same—Instruction by co-employee.

Such employee is entitled to have, and the employers are bound to provide, an instructor competent to teach the art of managing an elevator, *rega/rclkss of the competency of the employers in that regard.*And they are' also bound to provide such an instructor for a reasonable length of time to teach the employee how to manage such elevator, and the instructor must be guilty of no negligence to the injury of the plaintiff while he is being instructed.

Appeal by the plaintiff from a judgment of the general term of the court of common pleas of the city of New York, affirming a judgment in favor of the defendants, entered upon a verdict of a jury, and also affirming an order which denied plaintiff’s motion for a new trial.

The action was brought by the plaintiff, who was a servant of the defendants, against them to recover damages for personal injuries occasioned by the fall of an elevator which the defendants had just put into their store and business, and which was being put to use for the first time.

The casé has been twice tried. On the first trial the complaint was dismissed. This was reversed by the general term, and a new trial was ordered. Eeported in 13 Daly, 208. On the second trial the jury rendered a verdict for the defendants, and this appeal is to review such judgment.

The defendants were a firm doing business in manufacturing Sreserves in the city of New York. The plaintiff had been in efendant’s employment in such business as or.e of the porters for a long time prior to March 1, 1881, when this accident occurred.

In the month of February, 1881, the defendants caused to be erected and put into their building an elevator to be operated by steam and to be used in carrying persons and goods to the various floors and lofts in the building in which they were doing business.

Henry Dillworth (who was a brother of the defendant, William H. Dillworth), had been in the defendants’ employment as general superintendent of defendants’ establishment for some time and exercised the functions of hiring and discharging employees in that business. It is claimed by plaintiff, and the trial proceeded in the main upon that theory, that the defendants selected the plaintiff, among their numerous employees, to run and manage this elevator; that the plaintiff had no previous experience or knowledge in running an elevator and the defendants undertook to instruct him in that respect, and for the purpose assigned as such instructor said Henry Dillworth. Previous to this time his duties in the defendants' service was that of porter, moving boxes, unloading trucks, wrapping bottles, washing and capping them, etc., etc.

The defendants knew that the plaintiff had no acquaintance or *skill*in running said elevator and had never before performed or attempted to perform such a service. In accordance with these purposes the defendants informed the plaintiff that they had selected him to run and operate the elevator, and that said Henry *831Dillworth, who had knowledge and experience in that service, would instruct and qualify him to perform such service. The elevator was built and furnished to the defendants by the firm of Reedy & Co., who were doing a large business in that line.

One Mulcahy and Sanders, employees of Reedy & Co., who had constructed the elevator, placed the elevator and apparatus in position and prepared it for use. It is claimed by the defendants that Mulcahy, foreman of Reedy & Co., gave instruction to the plaintiff, at least in part, and there is some evidence tending to show that at times when the elevator was in operation carrying things from below to the floors above, and with which Mulcahy was engaged in respect to another elevator or in making some changes in connection with another elevator, had given the plaintiff, when he was with him in the car or elevator, some instruction in regard to running it, and it is sought thereby, on the part of the defendants, to relieve themselves from the consequences of any incompetency or failure to impart instruction sufficiently to the plaintiff by the said Henry Dillworth.

The elevator had been used more or less on Monday the 28th day of February, 1881, and was in use on the Tuesday succeeding and at about 5 o’clock on this latter day while the elevator was carrying three beams to the upper floor of the building and had proceeded up with the beams to be used to strengthen some shafting used in connection with other apparatus on the top floor, and at a time when the plaintiff with another of the employees of the defendants was in the elevator; and just after two of the beams had been taken out of the elevator at the third floor; and while the third and longer beam with its lower end resting on the floor of the elevator, and its upper end protruding beyond the top of the elevator, the elevator was started with this third beam towards the floor above. The elevator was stopped between the third and fourth floors in order to take out the third beam before the upper end of it should come against the roof, and while taking or preparing to take out this third beam the elevator was started by somebody and the evidence leaves it in some doubt who that person was, or started without anyone’s interference from some inherent defect in the machinery, as it is claimed, and while thus moving up the upper end of the third beam came in collision with the roof, which caused the cogs of the wheel upon the apparatus, one or more of them, to break and thereby the elevator fell to the bottom with the plaintiff in the car and by means of which the plaintiff was seriously injured.

This action is brought to recover damages of the defendants for such injuries upon the theory that the plaintiff being inexperienced in the running of an elevator and that to the knowledge of the defendants, and that having been assigned by the defendants to perform this duty the defendants were bound to qualify him for such service and that in doing so the machinery was found to be defective or Henry Dillworth, who was assigned as instructor for the plaintiff, was incompetent to perform this duty or was negligent in his manner of performing it and by reason of the premises the defendants are liable to pay plaintiff the damages he has sustained.

*832*F. C.- James,*for app’lt; *Mr. Bend*and *Charles*Kitchell, for resp’ts.

1

 Reversing 3 N. Y. State Rep., 604.

Potter, J.

The principles of law involved in this action are well defined and are not seriously controverted by the counsel upon this appeal. Those principles are, that a duty devolved upon the master of a servant hitherto in the capacity of a common hand laborer, before such laborer should be put in charge of dangerous machinery with which he is not acquainted, to instruct and qualify him for such new duty. *Connolly*v. *Poillon,*41 Barb., 366, 369; *Ryan v. Fowler,*24 N. Y., 410; *Noyes*v. *Smith,*28 Vt., 59; *Railroad*v. *Fort,*17 Wall., U. S., 553. That if the master selects a co-serVant in his employment to instruct and qualify the servant for the new and more dangerous service, the master must select a competent instructor or be liable for his incompetency or his negligence while performing the duty of instructor or for discontinuance of his instruction until it is completed by which the promoted servant is injured, and if such is the case, the master will be liable for the injury and it will be no defense that the injury was caused by one servant to his co-servant, for the servant whose negligence caused the injury stands for the master and the latter is liable in such case the same as if the injury was caused by the personal negligence of the master. *Mann*v. *Delaware & H. Canal Co.,*91 N. Y., 500; Wood on Master & S., §§ 349, 350, 444; *Brennan*v. *Gordon,*13 Daly, 208, 210 (this case on former appeal); *Loughlin*v. *State of N. Y.,*105 N. Y., 159, 162 3; 6 N. Y. State Rep., 826; *Railroad*v. *Fort,*17 Wall., U. S., 553.

The questions in dispute in this case, therefore, are whether the person giving the instructions for the defendants to qualify the plaintiff to run and manage the elevator properly performed that duty or was himself guilty of negligence in starting the elevator, or in leaving it in plaintiff’s charge before he was qualified, or whether the machinery was imperfect in any respect and the defendants were negligent in selecting and putting it in use. If any of these conditions exists upon proper and sufficient evidence to support it, the defendants would be liable to plaintiff for the injuries he sustained. It does not strike me that it can be reasonably claimed that the machinery was defective in starting up at the time the accident occurred from inherent defect and without somebody’s interference. It was not intended to do so and never had been known to do so, unless the rope was applied to start it. The testimony in this case is abundant to show that' somebody applied the rope to start the elevator up. The difficulty just here is that the evidence is too abundant, so much so, that it is difficult from the superabundance of it to decide just who it was that applied the rope to move the elevator up. The case seems to have been tried upon the true theory to determine whether or not the defendants are liable, and if any mistrial has taken place it is owing to errors in the charge of the learned trial judge or in receiving or rejecting testimony or in rulings in conducting the trial.

It is very evident from a perusal of the case and the exceptions *833to the rulings upon the evidence and the requests to charge and the exceptions thereto, that the trial was very closely contested and it would be somewhat remarkable if a trial court, in the hurry and confusion incident to a trial conducted in this manner, should have avoided the commission of some error. In order to properly dispose of these exceptions, it is necessary to have a just understanding of the questions upon trial. They are, whether Henry Dillworth was designated by the defendants as the instructor of the plaintiff to run and manage the elevator, and if so, whether he properly and sufficiently performed the duty thus devolved upon him by the defendants.

I think there was error in the charge of the court, made at the request of the defendant, “If the jury find as matter of fact that the plaintiff was put under instruction of a competent instructor and that he (instructor) was as well acquainted as defendants with the nature and character of the service which he undertook to perform, he cannot recover.” The jury could not otherwise understand this instruction than to mean that the defendants’ whole duty to the plaintiff was performed when they assigned as competent an instructor to plaintiff as the defendants were. This was erroneous in two respects. The *degree*of the instructor’s competency was guaged by the competency of the defendants. The plaintiff was entitled to have and the defendants were bound to provide him with an instructor competent to teach the art of managing an elevator regardless of the competency of the defendants in that regard, and of which there was no proof whatever in the case. But the defendants were not only bound to furnish plaintiff with an instructor absolutely competent to manage an elevator, but the defendants were also bound to provide such an instructor for a reasonable length of time to teach the plaintiff how to manage the elevator, and that the instructor should be guilty of no negligence to the injury of 'the plaintiff while he was being instructed. These relations spring from the fact that during this period the instructor is doing the work and standing in the place of the defendants, the masters.

There are other questions in the case deserving consideration upon this appeal, but I do not deem it necessary or worth the while to discuss them, having reached the conclusion that a new trial must be granted on account of the ruling already considered.

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

All concur, except Haight and Parker, JJ., not sitting.