#### Flora Spitzer, as Administratrix, etc., of Joseph Spitzer, Deceased, Respondent, *v.*A. Augustus Healy and Frank Healy, Appellants.

First Department,

December 19, 1913.

Negligence — injury to employee while working in elevator shaft — failure of elevatorman to warn employee — contributory negligence — evidence.

, In an action to recover for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant’s servant in operating an elevator, it appeared that the deceased was employed by contractors engaged by the defendant to install fireproof partitions in elevator shafts. The contractors had arranged with the engineer and elevator operator that the car itself should be used as a platform or scaffold for the men when obliged to work within the shafting. Shortly before the accident, a call came for the elevator to go to a lower floor, and by direction of the operator the decedent and his fellow-worker left the top of the car which they were using as a scaffold, and landed on the seventh floor, the operator saying that he would return shortly. He was detained for about half an hour, and when he started the car up the *506counterweights descended and caught the deceased who. was standing wholly or partly on an iron beam running across the elevator shaft at the floor level. It is claimed that the operator was negligent in failing to give warning before he started his car. It did not appear that the deceased was required by any work on which he was engaged to stand on the iron beam where he was injured.

Evidence examined, and *held,*insufficient to establish either the negligence of the defendant or the decedent’s freedom from contributory negligence.

Lau&hliít and Hotchkiss, JJ., dissented.

Appeal by the' defendants, A. Augustus Healy and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of February, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on or about the 12th day of March, 1913, denying the defendants’ motion for a new trial made upon the minutes.

*James J. Mahoney,*for the appellants.

*Morris Cukor,*for the respondent.

Scott, J.:

The plaintiff, as administratrix of Joseph Spitzer, deceased, has recovered a judgment for damages for the» death of her intestate, caused, as it is alleged, by the negligence of appellants’ servant in operating an elevator. The appellants, owners of a loft building in the city of New York, had employed certain contractors named Smith to remove the old sheet iron partitions inclosing the elevator shafts in the building and to put up fireproof partitions in place thereof. Plaintiff’s intestate was an employee of the contractors and immediately before the accident had been working on the seventh floor of the building.

There were three elevators in a row, the center one being used as a passenger elevator, and the outside ones as freight elevators. It was in the shaft of one of the latter elevators that plaintiff’s intestate was killed. At this time the old doors had been taken off, and deceased and another workman had been engaged in putting in place iron casings or lintels to receive the new doors, which were to be installed by another *507contractor. There was an iron beam at the floor level, running across the elevator shaft at right angles to the line of the opening into the shaft. The elevator car was balanced by heavy iron counterweights which descended as the car ascended, and *vice versa,*and which ran quite close to the iron beam above described. The contractors had arranged with the engineer and elevator operator that the car itself should be used as a platform or scaffold for the men when obliged to work within the shaft, and a platform was constructed on top of the car for this purpose. Shortly before the accident happened deceased and another man had been standing on this platform prosecuting the work. A call came for the elevator to go to a lower floor and, by direction of the operator, deceased and his coworker had left the car and landed on the seventh floor, the operator saying that he would return shortly. For some reason he was detained for about half an hour. When he started the car up, the counterweights of course descended and as they did so caught deceased, who was standing wholly or partly on the cross beam, and crushed him to death. The negligence attributed to the operator is that he failed to give warning, by calling out, before he started his car up. He swears that he did call out, but there was evidence from which the jury might have found that he was in error in this respect. On the whole evidence it is difficult-to say just how deceased came to be where he was when he was struck. There was evidence tending to show that, at times, men engaged on similar work in the building were in the habit of standing with one foot on the floor and the other foot on the cross beam or girder, standing, as some of the witnesses expressed it, “ catacornered,” and one witness said that some ten or fifteen minutes before the accident he had seen the deceased in this position. No one else saw him there, although there were others in a position to see, and it did not appear that any work on which he was then engaged required him to so stand. Furthermore, the position in which his body lay after it had been crushed by the counterweights indicated that he must have been standing with both feet on the cross beam. It is difficult to accept this version of the accident. But even if it were accepted it would not follow that the plaintiff is entitled *508to recover. The situation was that deceased had been working on top of the elevator car, that he had been told and had every reason to believe that the car would soon return and might return at any moment. Under these circumstances it seems to. be clear that he voluntarily placed himself in a position of danger, without taking' any precaution by prearrangement with the operator or by calling out to avoid the risk of an accident. Nor was the operator called upon, under all the circumstances, to anticipate that deceased would be in a position involving danger, not from the ascending car, but from the descending counterweights. The case, as it seems to us, while it does not actually resemble as to the facts *Lynch*v. *Elektron Mfg. Co.*(195 N. Y. 171) and *Andersen*v. *Thompson-Starrett Co.*(153 App. Div. 740), still falls within the principle laid down in those cases.

Upon a careful reading of the whole case we cannot avoid the conviction that the evidence failed to establish either the negligence of appellants, or the freedom from negligence on the part of plaintiff’s intestate, and that the verdict was influenced more by sympathy than by a calm consideration of the evidence. For this reason we are unwilling to sustain the recovery.

The judgment and order appealed from should be reversed and a new trial granted, with costs to appellants to abide the event.

Ingraham, P. J., and McLaughlin, J., concurred; Laughlin and Hotchkiss, JJ., dissented.

Judgment and order reversed, new trial ordered, costs to appellants to abide event. Order to be settled on notice.