delivered the opinion of the court.
That each contractor engaged in work on the building in question, or in installing machinery therein, owed to the servants of every other contractor engaged in work on such building the duty to use ordinary care to avoid injuring them, is conceded by appellee's.
If the contentions of the appellant be admitted, that on the evidence in this case the question whether Bressert, who was employed and his wages paid by the Thomas Company, was operating the crane for that company, as its servant, in the prosecution of the business of that company, under such circumstances as to make that company liable for his negligence in such operation, if he was negligent, and the question whether, under the pleadings and evidence, the Otis Company was liable to plaintiff for the negligent operation of the crane, if it was negligently operated, was also a question for the jury, the question remains whether on the evidence the jury might properly find that the crane was negligently operated.
The only work in progress at the time of the accident was the work of laying up the brick wall from the west end of that wall to the third column from the west. From that column east the wall rose by steps so that five feet east of the column it was about four feet higher than it was at and west of the column. The crane was eight or nine feet above the scaffold on which the bricklayers stood and could be moved without danger of injury to persons standing on the scaffold. Plaintiff went up the steps of the unfinished wall which led from the lower level to the higher, stood on the higher wall and made certain measurements. He then started to go back down the steps and in doing so placed his left hand on the crane rail, where it was run over and injured by the crane.
It was the duty of the person or persons operating the crane to guard against such accidents as could be foreseen as liable to occur, by the exercise of ordinary care. To hold that the jury might from the evidence in this case properly find that the operation of the crane was negligent, we must hold that they might properly find that the person or persons operating the crane could by the exercise of ordinary care have reasonably foreseen and anticipated not only that the plaintiff would go up the steps of the wall to such a height as that he could place his hand on the rail, but also that when in such position he would, although standing or walking on a wall seventeen inches thick, place his hand on the rail.
Our conclusion from the evidence is that the accident was of such a character that prudent men in the exercise of ordinary care would not reasonably have foreseen or anticipated it as liable to occur from the operation of the crane under the circumstances shown by the evidence, and, consequently, that the evidence fails to show a negligent operation of the crane. As plaintiff’s right of recovery, waiving all other questions, depended on proof of the negligent operation of the crane, it follows from what has been said, that in our opinion the verdict of not guilty as to both defendants was properly directed, and the judgment will be affirmed.
Affirmed.