Higgins v. Western Union Tel. Co.

• Decision Date: 13 May 1898
• Citation: 156 N.Y. 75,50 N.E. 500
• Parties: HIGGINS v. WESTERN UNION TEL. CO.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 75

50 N.E. 500

HIGGINS

v.WESTERN UNION TEL. CO.

Court of Appeals of New York.

May 13, 1898.

Appeal from superior court of New York city, general term.

Action by Peter Higgins against the Western Union Telegraph Company. From a judgment of the general term (31 N. Y. Supp. 841) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Jacob F. Miller, for appellant.

Chauncey S. Truax, for respondent.

O'BRIEN, J.

The plaintiff sustained a personal injury on the 7th day of December, 1891, while engaged in using the elevator in defendant's building at the corner of Broadway and Dey street, in the city of New York. The negligent act to which the injury is to be attributed was committed by a general servant of the defendant, whose duty it was to manage and operate the elevator. The question in this case is whether the defendant is responsible, under the doctrine of respondeat superior, for the negligence of its servant, under the circumstances of the case. There is practically no dispute with respect to the facts, and, briefly stated, they are these: It seems that some months before the accident the building referred to was injured by fire, and the company entered into a contract with a contractor and builder to restore the building. The contractor, among other things, was to furnish elevators, and they had been placed in the building some time before the accident. The builder had not, however, yet completed his contract, and had not turned over the elevators to the defendant. They were still, for all practical purposes, the property of the contractor. From the time he first placed them in the building, they were subject to his use in carrying materials and workmen from the lower to the upper floors. There can be no doubt that he had the right to use them for that purpose until such time as he should complete his contract, and turn the building over to the defendant. On the day of the accident the plaintiff, a mason or plasterer, was in the service of the contractor, and was directed by him to do some plastering in the elevator shaft. For the purpose of doing this work, they used the elevator as a platform, upon which the plaintiff stood. It was necessary to move the elevator up and down, to enable the plaintiff to do his work, and the contractor, instead of employing one of his own men for that purpose, found it more convenient and economical to procure a man who was in the employment of the defendant. It should be stated that, although the elevators had not yet been turned over to the defendant, it was nevertheless permitted to use them for the purpose of taking passengers up and down during some portions of the day. On the day of the accident the defendant's servant, who had charge of the elevator for the purpose of carrying passengers, suspended that work about noon; and the contractor, during the rest of the day, used the elevator as a platform for the purpose stated. There is no question in this case with respect to the fact that Algar, the person who took charge of the elevator, and whose negligence caused the accident, was in the general service and pay of the defendant; but the question is whether at the time of the accident he was engaged in doing the defendant's work, or the work of the contractor. The work of plastering the elevator shaft was that of the contractor. Algar, who was called upon by the contractor to move the elevator while the plaintiff was standing upon it, was not at the time taking any orders from the defendant. His orders came from the plaintiff, who was in the employ of the contractor, and who directed him to move the elevator up and down, as it became necessary, to enable him to do the work. The hand of Algar that moved the lever which controlled the elevator was directed by the mind and brain of the plaintiff. To hold the elevator steady, it was necessary to bring the lever to the center of the guard, and put it in a catch. To move the elevator up or down, the lever was taken from the catch and moved forward or backward accordingly. On the occasion of the accident, Algar did not put the lever in the catch, and did not have his hand upon the lever, but was siting in a chair, reading a newspaper. It was this negligence which...