#### Charles Schwartz, Appellant, *v.*The Onward Construction Company, Respondent.

First Department,

March 5, 1909.

Negligence — injury to employee of contractor working in elevator shaft — liability of owner for negligently operating elevator—proof raising • questions for jury — fellow-servant.

Action to recover for personal injuries. The plaintiff, employed by contractors constructing an elevator, was injured by the Car, which was operated by an *589employee of the owner, descending upon him while at work in the bottom of the shaft. On all the evidence, *held,*that the questions of the negligence of the owner’s employee and the contributory negligence of the plaintiff, should have been submitted to the jury.

The owner of a building who operates an elevator at the time when an employee of a contractor repairing the same is at work in the shaft is bound to use reasonable care to avoid injuring him.

Where the owner is sought to be held for the negligence of his servant causing injuries to the employee of a contractor installing the elevator, no question of fellow-servant is involved.

Appeal by the plaintiff, Charles Schwartz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of December, 1906, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 21st day of December, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.

*Jonathan*Deyo, for the appellant.

*Frank V. Johnson,*for the respondent.

Ingraham, J. :

The action was brought to recover for the injuries sustained by the plaintiff while engaged in working in an elevator shaft in a building occupied by the defendant. The complaint alleges that while the plaintiff was so engaged the defendant, by its servants, agents or employees, was running an elevator in said shaft in which the plaintiff was at work, and in so 'doing the defendant, by its servants, agents or employees, ran the same in such a careless, negligent and reckless manner as to bring the same down upon the plaintiff, inflicting upon him severe injuries which resulted in the amputation of one of his legs.

The answer admits that these elevators were being operated by the defendant in the building described in the complaint and that the plaintiff was engaged in doing the work in the elevator shaft in this building. *It*appeared upon the trial that the plaintiff had been working at this building four or five months prior to the accident, which was on the 25th day of October, *1902;*that his employ*590ers were contractors constructing the iron work in the elevator shafts ; that on the morning of the 25th day of October, 1902, prior to going down on the basement floor of the premises- plaintiff liad been at work on the second floor and -at about ten o’clock lie finished that work'; that he then went to work in the basement; that before going to work in the basement he went upstairs and told the two men who ran the elevators that he was going to put a scaffold underneath and was going to work under them; that he would be done in a short time and would let them know when he was done, and they promised the plaintiff that they would not come down ; that one Jones was running the elevator in the center shaft, and that he told Jones while he was standing on the outside in front of the eler vator on the first floor, and Jones said, “ I will not come down. I will be careful; ” that after that conversation the plaintiff went down and commenced to work ; that while at work in the central-shaft he saw the elevator coining down and hallooed,' “Look out, dó not come down; ” that notwithstanding the elevator came down and struck him; that although'the building was not finished, the elevator was running; that this center shaft was a passenger elevator, used in the defendant’s business. Jones, the elevatorman, was hired by Webb, the manager and steward of the defendant, who. was operating the hotel. Webb was called for the plaintiff, and testified that he had employed Jones upon this elevator, and that he was working under such employment at the time of the accident. The hotel was opened for guests in September or October, 1902. The man that was working with the plaintiff testified that the plaintiff was inside of the center shaft; that the elevator came down about five feet below the first floor and stopped; that the men hallooed to stop it, but instead of going up it came down all in a second and caught and crushed the plaintiff. When the plaintiff rested Jones was called for the defendant. He testified that he had been instructed by Webb not to run an elevator where there was a man'working in the shaft, or any part of it; that on the morning of the accident the plaintiff spoke to the witness and said that he was going down to do some work in the cellar, and for the witness not to come down ; that the witness said he would not at that time, but subsequently he thought about his orders and went down to the basement and told the plaintiff he had been instructed *591not to run an elevator when any one was working in the shaft; that the plaintiff said, “ All right, go ahead and run the elevator,” and that he (plaintiff) would take the risk or chance; that subsequently the witness continued running the elevator up and down and did not afterwards see the plaintiff ; that at the time of the accident lie-had taken some passengers to the sixteenth floor, and took a passenger from the sixteenth to the third floor; that- he let her off at the third floor and continued his trip to the first floor; that the elevator did not stop at the main office floor, but went fifteen or eighteen inches *below;*that he heard the plaintiff halloo; that the elevator did not go any further down in the shaft; but when he heard the shout he ran the elevator to the second floor, left it there and went down to see what had happened. Webb was recalled, and said that he knew that the men were working in the elevator shaft that morning, but he could not say that he gave Jones any instructions about running the elevator then. There was further evidence that the plaintiff had been warned not to work in the elevator shaft while the elevator was running, and was ordered on the morning in question not to work in that shaft. There was considerable evidence for. the' defendant that the elevator did not strike the plaintiff at all, but that he fell off the platform or scaffold.

In rebuttal the plaintiff denied that he was ordered not to work in the elevator shaft when the elevator was running, and denied that he was ordered not to- work in the shaft on the morning of the accident, and denied the statement to Jones in relation to his taking the risk.

After the testimony was all in the defendant moved to dismiss the complaint, which was denied; whereupon counsel summed up and the court charged the jury. After the jury had retired they returned to the court room and the court dismissed the complaint.

The plaintiff was at work in this elevator shaft under a contract made between the defendant and the plaintiff’s employers. At the time defendant was operating elevators controlled by its employees, and there can be no question, I think, but that the defendant was bound to exercise, under those circumstances, reasonable care to prevent an accident. There is certainly evidence to justify a finding of the jury that the accident was caused by the lack of care of defendant’s employee in charge of the elevator, and the question as *592to whether the plaintiff was guilty of contributory negligence or assumed the risk of the accident was clearly one for the jury. We have, therefore, the question as to whether the defendant was responsible for the negligence of its employee, the elevator boy. The defendant is a corporation and can only act through its employees and officers engaged in the operation of its hotel and as an appliance for the use of the hotel it maintained this passenger elevator in this shaft in which the accident occurred. There could be no doubt, I think, that if a person using the elevator had been injured by the negligence of the elevator operator the defendant would be liable, and I can see no reason why the- defendant was not under the same duty to the plaintiff as it was to any other person lawfully on the premises, *(McDermott*v. *Straus,*123 App. Div. 303.) The plaintiff not being in the employ of the defendant, there is no question of fellow-workmen involved, the fact being that the plaintiff lawfully at work upon the premises was injured under circumstances which justified a finding of negligence against the employee of the defendant in charge of the elevator, and for whose negligence, when committed in the course of his employment and in the performance of the duties of his master, his master is liable., The question as to whether or not this plaintiff was ordered not to work in the shaft when an elevator was running having been expressly denied by the plaintiff,, was a question for the jury.

On the whole case I think there was a question for the jury and that the judgment should, therefore, be reversed and a new trial' ordered, with costs to plaintiff to abide the event.

McLaughlin, Clarke, Houghton and Scott, JJ., concurred.

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