#### John Anderson, Appellant, *v.*Pelham Hod Elevating Company and Pelham Operating Company, Respondents.

Second Department,

December 30, 1908.

Master and servant—injury by hod elevator — liability of contractor renting elevator — failure to guard shaft.

One who rents a hoisting elevator to be used in the construction of a building and furnishes an engineer to run the same, whose compensation is included in the rental but who takes all orders for the operation of the elevator from the lessee, is not the “ contractor or owner ” within the meaning of the Labor Law, and is not liable for injuries caused by a failure to guard the openings of the elevator shaft as required by the statute.

Although, irrespective of the statute, one operating such elevator must exercise reasonable prudence and care, the lessee, under the circumstances, is the operator, and the liability for injuries caused by its operation rests on him alone.

Motion by the plaintiff, John Anderson, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s evidence upon a trial at the Kings County Trial Term in October, 1907.

*640*Alfred J. Gilchrist*[Jacob *Neu*with him on the brief], for the exceptant.

*Tallmadge W.*Foster, for the respondents.

Rich, J.:

This action was brought to recover damages for a personal injury-alleged to have been sustained through the negligence of the defendants. At the close of plaintiff’s evidence the trial court dismissed the complaint as to both defendants. Reid *& Co.*were contractors engaged in the construction of a building on One Hundred and Thirty-fifth street in the borough of Manhattan. For the purpose of getting the required materials to the different floors of the building as it progressed, they rented from the defendant, the Pelham Operating Company, a hod elevator, with its appliances, which they operated with their own men, with the exception of an engineer who ran the engine moving the elevator itself, as and when directed by signals given him by the employees of Reid & Co. from the different floors where they were working; the compensation of the engineer was included in the rental paid to the Pelham Operating Company. He was under the direction in all things of the foreman and employees of Reid *&*Co., and Mr. Reid testified that after the installation of the elevator it was operated by his men. The plaintiff was an ironworker in the employ of the Howell Iron Company (which furnished and erected the structural iron work of the building), and on the day of the accident he went to the cellar of the building for the purpose of getting a drink of water. While in the cellar the elevator came down, striking him and causing the injury for which he seeks to recover damages in this action.- There was no work being done in the cellar at the time of - the accident. There was no sign, guard or warning at the elevator shaft or at any other place in the cellar directing attention to the elevator or to any danger to be apprehended from its operation, or preventing a person from walking under the opening through which the elevator was lowered into the cellar.

When the plaintiff rested his case the defendant moved for a nonsuit. Counsel for the plaintiff conceded that there was no question of negligence in operation other than the one of guard and warning, and the learned trial justice dismissed the complaint. *641All questions save the one of whether the elevator was without “ proper guard or warning about its shaft or runway ” were thus eliminated. It is not seriously contended that the dismissal as to the defendant, the Pelham Hod Elevating Company, was improper. The defendant, the Pelham Operating Company, was not “ the contractor or owner ” required to cause the shafts or openings in each floor to be inclosed or fenced in on all sides by the provisions of section 20 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192), which was the only statute upon the subject in force at the time of the accident. There is no proof of any negligence on the part of the engineer, and the cases cited in which liability of hod elevator companies has been predicated upon the negligence of their engineers in raising or lowering the elevator without or contrary to signals given, are not applicable, even were it to be held that in his work the engineer operating the elevator was the servant of the defendant. It is contended that outside of the statutory requirement, the duty rested upon those operating the elevator to guard against such danger as could or ought reasonably to be apprehended in the exercise of reasonable prudence and care. Conceding this rule of law to be correct, it has no application to this case, for it is shown that the defendant was not operating the elevator. From the time of its installation it had been operated by the contractor, Reid & Co., as testified to by Mr. Reid, and the liability, if any, for a negligent operation of the elevator at the time of the injury rested upon that company and not upon the defendant.

The plaintiff’s exceptions must be overruled, his motion for a new trial denied, and judgment for the defendants may be entered, with costs.

Woodward, Hooker, Gaynor and Miller, JJ., concurred.

Plaintiff’s exceptions overruled and motion for new trial denied. Judgment directed for defendants, with costs.