
    Martin Ryan, Respondent, v. Braender Building and Construction Company, Appellant.
    Second Department,
    December 6, 1912.
    Master and servant — negligence — injury of employee greasing wheel at top of elevator shaft — violation of uniform practice — recovery denied.
    Where it was the uniform practice, known and understood by all parties ' concerned, that the wheel carrying a cable at the top of an elevator shaft should not be greased until the elevator reached the highest floor of the building when the employee engaged in doing such work would call to the operator of thevar and cause him to halt it until the greasing was completed, an employee, with knowledge of such practice, who reached his arm over such wheel for the purpose of greasing it while the elevator was on the ground floor, cannot recover for injuries sustained . by the starting of the elevator.
    Hirschberu and Carr, JJ,, dissented.
    Appeal by the defendant, the Braender Building and Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of February, 1912, . upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 8th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    ■Edward J. Redington \Amos H. Stephens with him on the brief ], for the appellant;
    
      Sydney A. Syme [Louis Cohn with him on the brief], for the respondent.
   Per Curiam:

The plaintiff for the purpose of greasing a wheel carrying a cable at the top of an elevator shaft reached his arm over it, whereupon the elevator at the ground floor started and his arm was caught, with resulting injury. The grave misfortune arose from his conscious departure from the uniform practice of waiting until the elevator reached the nineteenth floor, or the twentieth and highest floor, whereupon he would call to the operator of the car and cause him to halt it until such greasing as required extension of the arm over the wheel should be completed. This system was simple, safe and thoroughly understood by him and by the starter of the several elevators, by the superintendent, by the elevator operators, who were witnesses on the trial, by the president of the company and by others employed and related to the work. There is no evidence of departure from this custom save in the present instance. Why did plaintiff fail to observe it ? His proffered reason is that the elevator was at rest at the first floor. But what right had he to assume that it would remain at rest ? He testified that the superintendent in the early morning told him to grease that elevator and to advise the starter of it. This did not insure safe disregard of the recognized system of awaiting and staying the elevator near its upper terminal. The plaintiff states that he gave the notice at about half-past ten and the accident seems to have happened about twelve o’clock. It was possible for a starter in a large building to suspend the operation of the elevator indefinitely, but it was not within reason nor the rule that he should do so, nor did the plaintiff suggest it. Why, then, had he a right to expect the starter to ignore the fixed practice and keep the elevator at rest ? He states that when, after many years in the defendant’s service, he, some three months before the accident, came to the duty of greasing and oiling the elevator, the superintendent showed him how to do the work, and the evidence is clear that at that time the elevator was stopped aloft. But he also testified that the superintendent told him that he would stop them all while I would be greasing. * * *. Q. How would the elevator boy know when you were going to grease these wheels ? A. I would tell the starter or else I would tell the elevator boy.” The plaintiff’s contention is that the superintendent thereby promised him that he would hold the elevators at rest whenever the starter was notified of the intended greasing, and that, as the superintendent failed to arrange in that way, he was negligent. The proposed inference not only has no justification in the evidence, but is entirely disputed by it. The rule was that the operator should hold the elevator when the plaintiff notified him aloft,, and it was neither in thought nor in deed to hold the elevator on the ground floor. It was desirable to notify the starter that the greasing process was in contemplation, otherwise he would find his running schedule of his six elevators interrupted and his elevators delayed at points without knowledge of the detaining cause. The operator knew the system, as did the starter and the plaintiff, and the superintendent did his full duty by the plaintiff and fulfilled the promise of causing the elevator to stop during the greasing period. The plaintiff’s acknowledged understanding of a Very simple and safe system and his disregard of it led to his grievous injury. .

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

Jenks, P. J., Burr and Thomas, JJ., concurred; Hirsohberg and Carr, JJ., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  