#### Margaret Rogen, as Administratrix, *&c.,*of John Rogen, Deceased, Appellant, *against*Enoch Morgan’s Sons Company, Respondent.

(Decided June 4th, 1888.)

An employe of defendant attempted to drag a machine by a part of it not intended for that purpose, moving backward in a stooping posture, knowing that behind him was an elevator well, the opening of which was protected by but a single bar; and, such part of the machine giving way, he fell under the bar, into the well, and was killed. *Held,*that he was guilty of contributory negligence, and the complaint in an action for negligently causing his death was properly dismissed.

Appeal from a judgment of this court entered upon the dismissal of the complaint at a trial.

The action was brought by plaintiff, as administratrix of John Rogen, deceased, to recover damages from defendant, his employer, for negligently causing his death. The facts are stated in the opinion. At the trial, the complaint was dis*26missed on the ground of contributory negligence on the part of the deceased, and judgment was entered for defendant. From the judgment plaintiff appealed.

*Edmund Wetmore,*for appellant.

*William D.*Guthrie, for respondent.

Laeeemobe, Ch. J.

In dismissing the complaint in this action, Judge Bookstavee used the following language: “ It is manifest that if the deceased had approached the elevator well in any ordinary way, the bar protecting the well would have been quite sufficient to prevent his falling in it. The accident happened by reason of the giving way of a part of the machine by which the deceased was attempting to move it; this portion of the machine was not intended for such a purpose. The accident could not have happened, even under such circumstances, unless he had been in a stooping position, in consequence of which he fell under the bar instead of striking against it. The fact that there was but one bar to guard against such accidents was such a defect—if it was a defect at all—as was as open and apparent to the employe as to the employer; and it required no special knowledge or skill on the part of the former to discover it. Working, as he did, so near the elevator well, with full knowledge of the way in which it was guarded, I think he must be 'held to assume any risk there was in so working; and, therefore, that there is,no question of fact in this case for the consideration of the jury, especially in the absence of any proof that he ever complained to his employers or their agents of any lack of a proper guard or railing to the well. The case seems to me to fall within *Powers*v. *New*York, *L. E., & W. R. Co.*(98 N. Y. 274), and that the complaint must be dismissed.”

I think the learned judge correctly disposed of the motion, and concur with him in the reasons he gave for dismissing the complaint. The only thing necessary to be done in deciding this appeal is to- answer some of the objections raised by the learned counsel for the -appellant.

*27The attempt is made to distinguish the case at bar from the principles laid down in *Powers*v. *N.*Y., *L. E., & W. R. Co.*(98 N. Y. 274), by citing *Hawley*v. *Northern Central R. Co.*(82 N. Y. 370) and claiming that, in the present case, as in that case, the extent to which the protection for the elevator well was defective, as bearing upon plaintiff’s negligence, was a matter to be determined by the jury. The court in that case used the following language : “ While the plaintiff knew that the road was somewhat out of repair, and that he incurred some danger in running his engine, it does not appear conclusively that he knew how badly it was out of repair or that the danger was imminent or very great ” (p. 372).

But the question of the extent of plaintiff’s knowledge of the alleged defect cannot arise in the present discussion, for the reason that such defect was not susceptible of different degrees of knowledge. It consisted in the entire absence of a second or lower bar in the railing surrounding the elevator well. Plaintiff, if he knew of the defect at all, must have known of it in its entirety and to its full extent. The rule adopted in *Hawley*v. *Northern Central R. Co. (supra)*is a very just one for that class of cases. Evidently a locomotive engineer cannot be presumed to be actually acquainted with the construction and condition as to repair, of every rod of the company’s road-bed. He could not gain such knowledge without spending much time in a careful examination of the track throughout its entire length. It is easy to see the equity of the-rule requiring a stricter liability on the part of the employers under such circumstances and exonerating the employé from making a personal inspection of the whole road over which his engine runs, .whenever he may chance to hear a rumor that a portion of the same is comparatively out of repair. Substantially the same equitable reason existed for the application of the rule in the case of *Williams*v. Delaware, *L., & W. R. Co.*(39 Hun 430), where it was held that the question whether a brakeman would, in the exercise of ordinary care and observation, discover that a low bridge by'which he was killed was so low as to be unsafe, was a question of fact for the jury.

But neither of these cases has any application to the case at bar,

*28for here, us above shown, the employe, in the nature of things, must have known the full extent of the alleged defect, and must be charged also with a full knowledge of the danger he incurred. The learned counsel for the plaintiff argues that “ The risk of falling under the bar was not obvious. The absence of the lower bar was obvious, but the danger thereby incurred was not such as to present itself naturally to one of the observation and reflection of an ordinary workman.” I cannot agree with the counsel in this contention, or recognize the distinction he attempts to draw. A workman of ordinary intelligence is presumably acquainted with the law of gravitation and its necessary effects upon his own'body if he falls backward through an elevator well. As far as the practical administration of justice is concerned, we must take judicial notice that the danger incurred was as obvious as the absence of the lower bar. It seems to me that the only logical result that could follow, if the plaintiff’s argument in this case were allowed, would be to make the jury sole judges both of the law and the facts in accident cases. In *McMahon*v. *Port Henry Iron Ore Co.*(24 Hun 49), it is conceded that “ there may be instances in which the knowledge of the defects possessed by the injured party is so definite, that he must be deemed, as matter of law, to have taken the risk on himself of injury arising therefrom.” Negligence is always to a certain extent a question of law, for the court must on the trial of any action say, on the motion for a nonsuit, whether the facts testified to, if true, would constitute or would authorize the jury to infer negligence. Similarly, the court must often pass on the question of contributory negligence as matter of law. In a doubtful case, the question whether or not a given action on the plaintiff’s part contributed to his injury, is of course one for the jury. But if the very facts necessary to show the injury suffered by plaintiff also inevitably establish, according to the laws of physics, that the plaintiff was guilty of some fault of omission or commission without which the accident could not have occurred, then the court must, as matter of law, say that contributory negligence existed, and take the case away from the jury. An instance *29of this is found in *Powers*v. *N.*Y., *L. E., & W. R. Co. (supra),*—the case cited by the trial judge dismissing the complaint— where, at the bottom of page 230, the judges of the Court of Appeals say, as matter of law, that the action could not be maintained “ for the additional reason that the deceased was chargeable with contributory negligence in the use of the hand-car by himself and his fellow servants in the manner in which it was propelled at the time of the accident.” They also add as matter of law that “ it was clearly negligence to seek to avoid the train in the manner they did.”

In my opinion the learned judge correctly applied the law on the subject of contributory negligence in the present case. The accident could not have happened unless the deceased had backed up in a stooping posture from one end of the room to the other, knowing, although he may not have thought of the fact at the time, that there was an elevator well protected by but a single bar behind him; and if he had not, besides this, attempted to drag the machine around by a portion of it which was never intended for that purpose.

Under all the circumstances disclosed by the plaintiff’s ease, it was the duty of the court to say, as matter of law, that he had been guilty of contributory negligence, and the complaint was rightly dismissed.

J. F. Daly, and Allen, JJ., concurred.

Judgment affirmed, with costs.