McDonough v. Pelham Hod Elevator Co.

This was an action to recover damages incurred by the alleged negligence of the defendant in operating a hod elevator which it had installed for hire in a building in process of erection. The plaintiff was an employé of the contractor for the erection of the building. The complaint having been dismissed, it will be necessary to consider only the claims made by the plaintiff to show that the dismissal was error. We are all agreed that the plaintiff, the employé of the builder, was not a fellow servant of the engineer of the defendant whose negligence is claimed to have caused the injuries complained of. The defendant furnished its elevator, boiler and engineer for an agreed price and there was no common employer or common employment, nor was the engineer the servant ad hoc of the builder. Mills v. Thomas Elevator Co., 54 App. Div. 124 , 66 N. Y. Supp. 398 , affirmed 172 N. Y. 660 , 65 N. E. 1119 .

The plaintiff was injured by the negligence of the defendant’s servant while riding on an elevator built and installed for the purpose primarily, of carrying building materials to the different floors of the building in which plaintiff was at work. In view of the fact that this elevator was installed for the purpose of carrying building materials and the further fact that there were on it none of the safety guards or appliances to be found on a passenger elevator, the presumption is that the plaintiff was riding on it without the consent of the defendant. If such was the case plaintiff cannot recover, for defendant was under no duty to transport him from the ground floor of the building to the floors above, and if the engineer attempted to do so he was acting entirely outside the limits of his authority, and the defendant is not responsible for, his negligent acts in so doing. The burden is therefore upon the plaintiff to show that he was rightfully upon the elevator, and, in order to do this, that he was there with defendant’s permission, either express or implied.

It is not contended that plaintiff had defendant’s express permission to go up on the elevator. Was such permission implied? The presumption is that it was not, because this- elevator was not built to carry passengers. The plaintiff has not introduced sufficient evidence to overcome this presumption. He says that defendant’s engineers consented to his going up on the elevator. This consent will not avail

Appellant contends that the engineer was put here by the defendant for the purpose of aiding in the quick construction of this building, and, as carrying the plaintiff on the elevator enabled him to get more quickly to his work, the engineer was acting within the scope of his authority. The answer to this argument is that the engineer was not put there for the purpose of doing everything that would aid in the quick construction of the building, simply those things in the line of his duties as an engineer of a freight elevator.

Appellant contends that the contract being silent as to whether or not passengers should ride on the elevator, the contract was subject to the known usages of the business, and that it was shown that carrying passengers was customary in this business. The answer to this argument is that there is no evidence in the record of a general custom of this nature, the only evidence is to the effect that the men did it in this instance, which is not evidence of a general custom in the business, which should have been known to the defendant at the time it supplied this elevator. Appellant contends that since the men rode on this elevator openly and notoriously for weeks without the objection of the defendant, and not knowing the nature of the engineer’s instructions in the matter, defendant is estopped to deny the engineer’s authority, and to claim that defendant was not lawfully on the elevator. There are two difficulties with this argument: First, that the cases cited in support of it are all cases of contracts made by the agent outside the scope of his authority, where the principal has reaped the benefits thereof, and I have been unable to find any case which applies the doctrine of agency by estoppel to a case of this kind. The other difficulty with the argument is that this is not a case in which the plaintiff has been misled by the agents’ acts into believing that the defendant authorized him to ride on this machine for the machine was obviously dangerous, and that the plaintiff realized the danger is shown by his confessed reluctance to riding/ on it.

The only case cited by appellant which approaches an authority in favor of his contention is Stringham v. Stewart, 100 N. Y. 516 , 3 N.

In Eaton v. D. L. & W. R. R. Co., 57 N. Y. 382 , 15 Am. Rep. 513 , it was held that conductors of freight trains cannot create any liability on the part of their principal, to a person taken by them on such trains, unless the principal in some way assents to it, and that duty to be careful toward him could only spring up on the part of the principal by an act on the conductors’ part coming within the scope of his authority. The case of Morris v. Brown, 111 N. Y. 318 , 18 N. E. 722 , 7 Am. St. Rep. 751 , seems to be directly in point. In that case, a civil engineer employed by the aqueduct commissioners got upon a car operated by the defendant as contractor for the construction of a tunnel at the Croton Dam. The cars were operated by a stationary engine and cable to draw material out of a shaft. By the omission of defendant’s servant to attach the cable to the car, or otherwise control its velocity, the decedent was thrown off, and killed. Judge Danforth speaking for an unanimous court said:

“As they [the cars] were not furnished for such use, so there was no permission from the defendants or any one of them that they might be so used. But it is said this permission might be implied, because the intestate and others had before ridden upon the cars. Without permission from or duty on the part of the defendants to give it, I cannot see how that result follows. On the contrary, a person so using the car at each time took upon himself the risk and must abide by its condition and the quality of the attendant at the time he so used it, and was entitled only not to be lead into danger.' Negligence is an omission of care and caution in what we do. But the duty to be actively cautious and vigilant is relative, and where that duty has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term. The plaintiff was in no position to complain of the defendants or their servants. The frame and dump the intestate got upon was not a vehicle for his carriage, but an instrument of labor, a mere implement furnished by the defendants to their servants, as they might have a man with a basket or barrow, or a mule with panniers to take out the refuse, as in former times was the custom in doing such work. * * * The plaintiff had a right to be in the tunnel for its inspection. The contract put the defendants under no obligation to carry him into the tunnel, nor by it did he acquire any right to be upon the car. Nor did he acquire that right through any consent or act or acquiescence on the part of the defendants. All the witnesses agree that no permission was given by the defendants; no evidence tends to show that they even knew the ear was at any time so used. The brakeman of the car had known it, but neither his knowledge nor assent could bind the defendants. He was not their agent for that purpose. It is a general proposition that a master is chargeable with the conduct of his servant, only when he acts in the execution of the authority given him. * * *

The deceased had. In fact, ridden upon the car; he had done so under no other permission, á volunteer, but in safety. In each instance, however, he must be deemed to have assumed the risk, and this last time he was unfortunate. The consequences of that misfortune should not be thrown upon the defendants.”

The judgment should be affirmed, with costs.

All concur.