#### Robert J. McDermott, Respondent, v. Isidor Straus and Nathan Straus, Appellants.

First Department,

January 10, 1908.

■Negligence — injury by elevator —- contributory negligence.

A workman engaged in putting locks on the doors of elevators under circumstances which require him to lean over into the elevator shaft and give close attention to his work in order to perform it, is not guilty of contributory negligence as a matter of law in failing to watch for the elevator, which descended and struck him without warning, if he was aware that the elevator boy knew of his position and had been instructed by the chief engineer to look after the , safety of the workmen and give them warning.

Lambert and McLaughlin, JJ., dissented,'with opinions,

*304• Appeal 1)7,, the^dpfendan.ts, Isjdor .Straus and. apotlxey,- frpin, a judgment. Q-i-the Supreme;Cqqr,t in favqr, of the. plaintiff,-entered in^h^Qffiqe.ef the.qlerjk. of the,,county of ÍTew; York-qq the. 2d day, of March, l^OT,..upon the,yqfdict ,ofj a,, jury for. |1,§QQ, aqd 'ajsp.-from an order, entered in said, clerk’s office .on. thq.lpt .day o^Mqpqh,. 1907, denying the defendant^’ motion, for, a, new .trial iqadp/qpqn, tlie minutes. - , •• ,, ".....' ........ ,........,

*L. Sidney Carrere,*for the appellants.

*M. L. Malevinsky,*for the respondent.

Patterson, P. J.:

The> jndgmep.f frqm which this .appeal is,taken should be affirmed. It,is,nqt spriously disputed .that the bqy in charge of the elevafor was negligent, in ,its rpanagement at,the time the ,plaintiff .was injured, or that he disregarded the instruction he had received from the chi,ef engineeqto give notice when the elevatorias ahoqt.to" descend, to thp place at- whiph thq pjainjiff wap working.The point, insisted upon,by the appellants, is that, oyen,"admitting, tjie negligence of the elevator,boy and that tjie jury, found prqperly upon that issue, the plaintiff was openly and avowedly guilty of oontributóry negligehcd as matter of law, 'and, fheieforej’ should ¿ót be permitted to recover. '. ■

.--'Th'edssue'of’contributory ñ-egligence wa® left- td-'the ’jm?y:irnder instructions quite favorable to the defendants.' ’"The evidence'" showed that the plaintiff was employed to do certain work in con-, nection with putting-locks on screen doors used at the elevators for purppses of,yenfjlajiqn,.,,,, Hje was, directed-, jbo.,tftke«.qff ■ tihe.loqks, and the-screws and put on larger...¿preves,, ,He had been working at various doors and lqpf^s fqr several ,day$,pripr ,to.,.the accident. The chief engineer of the defendants knew that this work was being done, and instructions had been given by him to the elevator operator, to" give''warning'to those working’n'éár'dr'.abó'út" the’elevators' by shouting whenever tlie elevator was."approaching tlie point at which tl*fcy,.VSV.Q-'WPBkiRg. ,'.It, waa,necessary.for the,.plaintiff, in perfoyrping his-work,-'to lean over into the -elevator,, well-hole. .The'work có'úM not-otherwise haVé beeii dófief "The elevator boy'opéned'the ■ door to permit the plaintiff to go .inside to dó his work, arid'while. *305the, plaintiff, was at.work the: elp.va.tpr, descended and struck, hipi. No warning whatever was given,by.the,elevator, hoy of.tjie approach of. the: car. He knew the. plaintiff, wag engaged- at.work, anff.. admits he was, told,to look after the ¡safety of the workmen, and that he faffqd to give: the. warning.he, was .instructed, by the; chief, engineer to give,

The case, then, is one - in which, the,- -workman was,, lawfully, engaged at work in and about, the,elevatorthe work was of .spell a character as required his close, attentipnpreqautipns wpt'.e taken for his protection, - whiph; were, "neglected, by. the. elevator' boy, and the plaintiff-had' a, right, to. rely upon, the operatpr, qfitlip car obeying the, instructions, given -him-' The, jury were justified in,their finding upon the issue of contributory, negligence. It. is, not, sug-i gested what the plaintiff .could, ha.ve done other, than w,as. dqne, considering,the nature, and,character of the-work, he was. performing t,o protect himself from injury. The case: seems to. be qpite.similar *to Schmitt v. Metropolitan Life Ins. Co.*(13 App. Div. 120). Here, as, there, -the plaintiff-, was,compelled - to .work, under circumstances, which rendered it impossible fpv.hiui.tq bp cpntinnpnsly looking, for the. movements, of the elevator. ■ It. was.not in,reliance,qn]y upon a conversation had between the plain tiff -hi msqlf, .and tjie elpvatQr.bpy respecting, the; niQvernqnts., off, thq. car,,but upon .thp instructions which had been, given, -by the chief,' engineer, tp the, eleyatoiyhoy, that _ the' plaintiff; performed, work. - requiring, his clqse, attentipn .inside, thp elevatpr.-shaft, , The. jury, weye entitled .to. take,-intq.com, sideration'all- the facts, and circumstances. connected with,the pase and- to determine therefrom whether the. plainfiff; omitteff tp.do.anyñ thing : winch a prudent,person, shpuld. have done tq secupe his own safety, and with the.finding of the jury upon that subject,we s.eq np reason to interfere:. . ■ *■ •*. . •

The judgment" and.order appealed, from- should he afilrrn.ed, with costs. ■ -

Houghton and Scott, j<L, concurred; McLaughlin and Lambert, Jff., dissented.

Lambert, J. (dissenting):

I am unwilling tb concur, in the ¡ decision about, tp, be; handed down in this case. The plaintiff, who .'appears to have,been, slightly *306injured by being struck by a descending elevator while he was at work in changing some screws in a lock on a screen door, has a judgment for $1,631.88, and it seems to me that the case is devoid' of evidence to justify such ■ a hesiilt.. The facts about which there is no dispute show that one Sanderson had taken a job to install Certain screen or summer doors in front of the elevator -doors in the basement of the Macy store, and this- work had been practically completed. Subsequently Sanderson directed the- plaintiff to go to the store and change the screws in the locks, replacing those which had been used with longer ones. Plaintiff had made the change in' the door in one of the shafts, and had called . the attention of the boy operating the second one to the fact that he'was going to do some work in that shaft. The boy in this elevator opened the door, the lock being on the inside, in order that the plaintiff might be in a position to do the work. Plaintiff says the boy probably knew what work he ■ was going to do, and that he (plaintiff) told the boy to look out for him. Plaintiff says it was necessary for him to be inside the door and to lean out into the elevator shaft to take out'and replace these screws, and that while so engaged the elevator came down' upon him, inflicting the injuries complained of ip this action. - He is the only witness in support of the-manner, in which the accident-occurred called by the plaintiff, and lie says that-after telling the elevator boy that he was going' to. work there,, the elevator boy “ took his car up and I paid no more attention to'him, and I put my shoulder in to get the screws out of the lock, and the first thing I knew he had me clipped by the shoulder.” On 'cross-examination he says-: *“*I went to the second elevator and started to put on the screws and told this bóy to open the door for me. He did do that so that I could get inside the door. ' I told him I was going to work there and to look out'for me. That is right. I did not give it another thought. That is right.” The boy who was operating the eleyator frankly admits that he knew the plaintiff was at work' there, but he says he looked down the elevator shaft before the elevator reached the basement and, not seeing any one in the way, he let the car down at half spe'ed, and that the' plaintiff intruded his-shoulder in time to get hit, but that he reversed his car at once and that the plaintiff was not seriously injured, These were the only eye-witnesses of the accident who were called, and *307there is no circumstantial evidence to contradict or corroborate either of the witnesses. The testimony of the elevator boy that he looked down the shaft and saw no one is not contradicted and is in entire harmony with the testimony of the plaintiff that he dismissed all thought of the boy from his mind after telling him that he was going to work there and to look out for him; for if this was his attitude, he may not have been in view when the boy started down, and yet he may have stepped into the shaft immediately afterwards, thus not only permitting but inviting the accident which occurred to him. •' .

In my judgment, there was practically no evidence to show negligence on the part of the defendant or its servant. While it is true, perhaps, that the'plaintiff had a right to rely upon the elevator boy to *“*look out for him,” the elevator boy had a right to assume that tile plaintiff, a man of experience, knowing that the elevators were being operated, would exercise some degree of care for his own safety. The duty of reasonable care is'mutual, and both parties had a right to expect that the other would exercise that reasonable degree of care which the law demands, and the elevator boy, having looked down the shaft, and seeing no one in the way, was not bound to anticipate that the' plaintiff would, without looking, intrude his body into the shaft while the car was descending. The testimony of the boy was not disputed and no good reason suggests itself why his evidence was not to be believed. But assuming that the jury might elect to disbelieve him, wftere is the evidence in this case to warrant the conclusion that the plaintiff was free from contributory negligence ? This is not a case where the rule is to be relaxed because of the fact that the injured one is dead and in no position to furnish direct evidence. He testified upon the trial that he told this boy to look out for him and that then he went at his work and gave the boy and the elevator no further thought; “I did not give it another thought.” This man, a carpenter of thirty years’ experience, knowing that this elevator was being operated at irregular intervals, engaged in a job that would take but a few minutes to perform, and obliged to be at times both inside and outside of the shaft in order to perform the work, tells the jury that he told this boy to look for him and then dismissed the matter from his mind and went on with his work in *308effect as though he were in a position where no danger was to be anticipated ; and. we are asked: to sustain a verdict which must determine, that this was.the exercise of "due care on his part, and that he has furnished) the evidence of ¡absence of contributory! negligence, which the law demands as a condition of - liability. For my¡ own part I. am unable to agree to such a ruling.

The case of *Schmitt*v. *Metropolitan Life Ins. Co.*(13 App. Div. 120) is clearly distinguishable. In that case there was a work, involving several days of-labor, and the contract provided that, the elevator should be operated during the progress of the work, and a: system of. signaling, had been agreed: upon and ¡pursued during the time, with perhaps a short interval, in each day during a temporary! change of operators, and the. evidence which was urged- as indicating contributory negligence on-the part of plaintiff’s testator, who. was killed-while necessarily leaning into the elevator shaft, was the fact that deceased had ridden in ¡the elevator with Christopher, thfe; Relieving man, and knew that the latter was in the habit of • operat ing the same without, giving warming, and it Was while Christopher was operating the elevator that the" deceased, met with his -accident. It" is: one thing, for a man to rely upon a customary and agreed system, of signals, in a continuous employment, - where he may be fairly .expected: to become engrossediin his work, or to have hjs attention taken away from his obvious dangers, but to. invoke this rule in a case of .mere incidental employment, not to occupy more than half an hour (this being, the time used.on the,other elevator in doing the same, work) and to permit, the plain tiff, to rely wholly on the élevator boy, is not justified by any adjudicated case falling within the range of my observation." It does not. appear that there had- been any signal agreed upon except- such as may be inferred from’ the fact, that, on two occasions-the elevator boy gave notice, of his intention to lower the elevator. The boy was told to .look out for the plaintiff, and the uncontradicted: evidence is that he did-look out for him on two separate occasions, and that on the third, occasion he looked:dowri the shaft and- did not see the.plaintiff, and, that, he then lowered the car at-half speed. Clearly, the defendants ■ did not, in employing the plaintiff, for a mere incidental:job of this character, become insurers: They Were only called upon to exercise reasonable care, and in the.exercise of .this care they had a right to *309assume that the plaintiff would himself take that reasonable degree of care which the known and obvious dangers would suggest to a reasonably prudent man.

In my judgment the evidence shows conclusively an absence of reasonable care on the part of the plaintiff, and that it was error to refuse to set aside the verdict.

McLaughlin, J. (dissenting):

The only precaution which the plaintiff took for his own safety was to call the attention of the boy in charge of the elevator to the fact, that he was.going to do certain work in or near the elevator shaft and to look out for him. He testified: “ I told him I was going to work'there,' and to look out'for me. That is right. I did not'give it another thought. That is figlit. As I was standing there I was knocked down to my knees.” It thus appears that he relied entirely upon the elevator boy and exercised no care whatever for his own safety. He certainly was under some obligation, being in a place of dá'nger,"toTook out for’himself. ’He could not throw the entire responsibility in this respect upon the elevator boy and then, in ca.se of injury, hold defendant liable.

Hor is it an answer to the suggestion that his negligence was for the jury, to say that, it having found in his favor, the verdict ought not to be disturbed. The verdict ouglit not to be permitted to stand unless the facts fairly tend to support' the finding that he himself was free from negligence. The facts here proved do not tend fairly to establish such finding, and the plaintiff’s own testimony negatives that'fact.

In addition to the'foregoing, I do not think the plaintiff ' established ' any negligence on ' the part of the defendants. They employed' the" elevator boy to manage the elevator. The plaintiff had no right, without their acquiescence or consent, to impose upon the elevator boy any other'duty, and when lie did so the defendants were not liable for the -negligent manner i'n which the elevator boy performed such other duty.

Upon both grounds, therefore, I think the judgment and order appealed from should be reversed and a new trial ordered, with costs to thé appellants to abide the event of the action.

Judgment and order affirmed, with costs.