Jehle v. Ellicott Square Co.

Hardin, P. J.: According to the evidence given in the case in hand the defendant had not accepted the building from the contractors who were engaged in constructing the building under a contract with the defendant. The defendant had not accepted the building or offered it to the public for use. True, it had commenced making leases to tenants of sundry portions of the building, and the tenants were engaged in the process of fitting up the portions rented of the defendant. When the Jewett Manufacturing Company took the contract from the Ellicott Club to furnish the club rooms, the Jewett Manufacturing Company and its servants and employees knew that the building was incomplete and that.the defendant had not accepted it, and that the control of the building was in the hands of Jonathan Clark Sons & Co., the contractors who were engaged in the process of constructing the building. That condition appears to have been well understood by the Jewett Manufacturing Company and inferentially by the employees of the Jewett Manufacturing Company, including the deceased. The learned counsel for the appellants calls attention to Sterger v. Van Sicklen (132 N. Y. 499). In that case the plaintiff went to the defendant’s house, not at the occupant’s invitation or on a matter of common interest, and on coming out one of the steps broke and she received the injuries complained of, and it was held that no case for recovery was made out by the evidence. That case does not sustain the contention of the appellants. It is also contended in behalf of the appellants that “ it was the defendant’s duty to exercise reasonable care in maintaining the premises and the means of entrance and departure at all times in such condition that others entering their building upon business [346] might enter and depart with safety,” and cases are cited in support of the general proposition thus contended for. However, the evidence in the case in hand indicates that the defendant was not in possession of the property in the full, broad sense included in the assumption made by the argument just mentioned. On the contrary, the defendant had contracted for the construction of the building, and that construction had been given out to Jonathan Clark Sons & Co., and they were constructing the building and were entitled to control its management and the manner in which it should be used. Besides, it was an independent contractor having a right to control the property. (Neumeister v. Eggers, 29 App. Div. 385.) The defendant was required to use reasonable prudence and care to keep its premises in such condition that those who visited it would not be unreasonably or unnecessarily exposed to danger. In Hart v. Grennell (122 N. Y. 371) it was said: “ The law, however, does not require warranty of the safety of those coming upon their premises. A merchant may place in his store the usual and proper appliances for conducting his business, and when placed in full sight, and not'so as to threaten danger, the merchant is not liable for injuries to a visitor occasioned thereby.” In the case in hand it is made clear by the- evidence that the John 0. Jewett Manufacturing Company was aware that the defendant’s building wras incompleted and that the elevator and its appendages were approaching completion, and the foreman of the John C. Jewett Manufacturing Company testifies that he was aware that people were at work on the indicator at the time he attempted to load the refrigerator upon the deck of the elevator. So far as the evidence discloses, the workmen upon the indicator were employees of independent contractors for whose acts of negligence the defendant is not responsible. They were not in any just sense employees of the defendant under such circumstances as to make the defenda-ntliable for their acts of negligence. (Ferguson v. Hubbell, 97 N. Y. 507.) In King v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 181) it was held that “ An owner of real property is not liable for injuries resulting from negligence on the part of a contractor or his employe engaged in performing a lawful contract for sytecific work upon the premises. The law will not impute to one person the negligent act of another [347] unless the relation of master and servant exists.” (Engel v. Eureka Club, 137 N. Y. 103.) The evidence in this case shows that the use by the John C. Jewett Manufacturing Company, and its employees, of the elevator was not the ordinary use of an elevator in a completed building under conditions which impose upon the pwnev the duties and obligations which are asserte'd by the appellants. The situation was patent and visible to the deceased as well as to his immediate employer, the John C. Jewett Manufacturing Company. When the John C. Jewett Manufacturing Company borrowed the use of an elevator, they borrowed the use of an incomplete, unfinished elevator, knowing that there was no guard or protection to prevent the tools or materials that were being used by parties at work on the indicator from falling down the well upon persons who should venture inside of the well in or near the basement. The circumstances surrounding the building quite negative any obligation on the part of the defendant to furnish a fully-equipped elevator. The evidence fails to present a case of negligence on the part of the defendant, the corporation, causing the injuries complained of. If the evidence indicated that the defendant had opened its elevator to the public, induced or influenced the public, or the deceased as a part of the public, to use it under the ordinary assurance that the elevator was safe and suitable for úse, a different case would be presented from the one now in hand. Undoubtedly the law is quite stringent in respect to the liability of parties operating an elevator for hire or for accommodation of the public, but the condition in which the defendant was situated — its relation to the uncompleted building and the uncompleted elevator, and its appendages — distinguish this case from the ordinary case arising where the liability of an elevator company, or of the proprietor of the elevator is asserted. We fail to find any proper predicate for sustaining an averment of negligence against the defendant in the evidence in this case. We must, therefore, sustain the nonsuit. All concurred. Judgment affirmed, with costs.