Opinion
June, 1907.
Eustis Foster (John E. Eustis, of counsel), for appellant.
Frank A. Acer (C.A. Molloy, of counsel), for respondent.
This action is to recover damages for injuries sustained through the alleged negligence of the defendant. The plaintiff was struck by a brick which fell from a hod elevator which was carrying bricks to one of the upper tiers of a building then in course of construction. The evidence showed that the machinery, elevator and a set of hods were rented by the defendant to one Goldstein at thirteen dollars per day, for every day it worked, including engineer and coal. The hoisting apparatus was installed under the direction of Goldstein's foreman, who gave the engineer instructions in regard to the hoisting of brick and materials. The materials were loaded upon and taken from the elevator by employees of Goldstein. The only employee of the defendant engaged upon the work was the engineer. The duty of the engineer in connection with the work was to get up steam in the morning and await orders from the contractor. When the employees of the contractor gave a signal of one bell, he would start the engine and the elevator would go up, in which position he would keep the elevator until he got another signal from an employee of the contractor in response to which he would lower the elevator. The facts above recited were fully established upon the trial. The evidence did not clearly show that the brick which hit the plaintiff fell from the elevator. The mere fact that the elevator was operated by an employee of the defendant and that the defendant owned the elevator is not sufficient to charge the defendant with liability for any injury that occurred from material falling from the elevator. The brick might have fallen because the elevator was carelessly loaded, or because the signal to the engineer was carelessly given, or from a variety of other causes for none of which the defendant would be responsible. To hold that the brick which struck the plaintiff fell because of the negligence of the engineer would require us to indulge in speculation which would be wholly unwarranted. There was no evidence to show that the engineer was not competent to do the work required of him, or that he was guilty of any negligence whatever.
GILDERSLEEVE and PLATZEK, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.