Opinion
January 19, 1912.
James S. Darcy of counsel [ Edward D. Loughman, attorney], for the appellant.
Edgar J. Treacy, for the respondent.
On the 2d day of July, 1906, the plaintiff was in the employ of the firm of Martin Driscoll, mason contractors, working on a building in the course of construction at Nos. 420-422 West One Hundred and Sixteenth street, and sustained personal injuries through the alleged negligence of an engineer, who was in the employ of the appellant in charge of a hod-hoisting engine, in failing promptly to obey a signal to lower an elevator which was at the ninth floor and on which some empty barrows had been placed by one of plaintiff's fellow-workmen, who then gave the signal, and in acting on the signal after a lapse of time, which led the plaintiff to believe that no signal had been given to lower the elevator and that it was safe to work about it in putting on other empty barrows to be taken down. The evidence indicated, but is not entirely clear on the point, that a contract was made by the appellant by which it agreed to furnish the engine and the engineer for a gross sum, and that the engineer was in charge of the hod-hoisting apparatus as a servant of the appellant, which would render it liable for any negligence on his part in operating the engine and he would not be in the employ of plaintiff's master and the doctrine of assumption of risk of negligence on the part of a coemployee would not obtain. ( Genovesia v. Pelham Operating Co., 130 App. Div. 200.) At the time of the accident the plaintiff was working on the ninth floor. The engine was on the street in front of the building and the engineer was stationed there. After the accident the plaintiff was brought down on the elevator, and, assisted by fellow-workmen, walked out to where the engineer was and had a conversation with him. Over the objection that it was incompetent and exception duly interposed and taken in behalf of appellant, plaintiff was permitted to give this conversation, and in it, according to the plaintiff, the engineer admitted that he neglected to lower the elevator for five or six minutes after having been signaled so to do, and then lowered it without receiving any further signal and expressed regret that he was the cause of injury to plaintiff. This conversation was received, in effect, as an admission of negligence by the appellant through its employee who, although a party to the action, was not represented on the trial, and the evidence was not received as against him but as against the appellant who was defending the action. Counsel for the respondent attempts to sustain the ruling in admitting this evidence on the ground that the declaration of the engineer was admissible as part of the res gestæ. We deem it quite clear that the declaration was a narration or admission with respect to a past event and not an involuntary exclamation or declaration constituting part of the res gestæ. ( Brauer v. New York City Int. R. Co., 131 App. Div. 682.) The evidence was most damaging to the appellant and its erroneous admission requires a new trial.
It follows, therefore, that the judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., CLARKE, SCOTT and MILLER, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.