
    William Fogarty, Respondent, v. Pittsburg Contracting Company, Appellant.
    Second Department,
    September 10, 1912.
    Appeal —when Appellate Division will not consider facts — master and servant — negligence — injury by descent of hoisting elevator — failure to comply with Labor Law — contributory negligence.
    Where on the trial of an action for negligence defendant did not move to dismiss the complaint and no exception was taken to the charge or to the admission or rejection of evidence and no appeal has been taken from an order denying a motion for a new trial under section 999 of the Cede of Civil Procedure, no question of fact arises on an appeal to the Appellate Division.
    A contractor constructing an underground tunnel is negligent in failing to provide a way for servants to pass through the tunnel without going under an apparatus used to hoist and lower materials as is required by section 138 of the Labor Law.
    A servant employed in such tunnel to unload cars from the hoisting apparatus, who was injured when the car descended upon him without warning, the signaling apparatus being inefficient, cannot be held guilty of contributory negligence as a matter of law where, being at work four days, he had been given no instruction as to the risks, and there was nothing to show that he knew of the inefficiency of the signaling system.
    Appeal by the defendant, the Pittsburg Contracting Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of December, 1911, upon the verdict of a jury for $1,750.
    
      John Ambrose Goodwin, for the appellant.
    
      Humphrey J. Lynch, for the respondent.
   Hirschberg, J.:

The plaintiff has recovered a verdict for damages sustained by him while working for the defendant in the construction of a tunnel to be used in connection with the water supply of the city, of New York. He was in a shaft at the time of the accident,' about 125 feet beneath the surface of the ground and at the bottom of the tunnel. Two hoisting cages were operated in the shaft, working alternately upon a cable by means of an engine located on the surface of the ground a short distance from the mouth of the shaft. At the bottom of the tunnel, and running across the opening of the shaft were two railway tracks on which hand cars were pushed to and from the shaft. By the operation of the apparatus a loaded hand car would go up on one of the hoisting cages and an empty hand car would come down at the same time. The plaintiff’s duty, among other things, was to fasten the loaded car to the cage that it might be hoisted and to disengage the unloaded car for the purpose of loading and fastening it again, as the alternate turns required. There seems to he some proof to the effect that as he was obliged to enter the bottom of the shaft from time to time to discharge his duties, a man on the surface of the ground was required to signal to him when a cage was descending, but the only system adopted for signals was to endeavor to make a can, described by one of the witnesses as a tomato can, strike the metal top of the cage by pulling a rope at the surface. The man operating the signal could not tell whether the can struck any metal on the top of the cage so as to give a signal of warning, and on the occasion in question it was proved that no sound or warning was heard by the plaintiff.

The plaintiff was injured while passing in the discharge of his duties along' the tracks under the shaft at a time when a loaded cage was coming down and of which the attempted signal, as I have said, gave no warning. He was crushed by the weight of the car and very severely injured. Ho motion was made to dismiss the complaint at any time during the trial. Ho exception was taken to the charge to the jury, or to the admission or rejection of evidence, and although a motion was made for a new trial on all the grounds contained in section 999 of the Code of Civil Procedure, and denied, no appeal has been taken from the order denying the motion. There is no question of fact, therefore, before the court, and the only point urged by the learned counsel for the appellant in effect is that the plaintiff was guilty of contributory negligence as matter of law.

The negligence of the defendant is undoubted. There was no way provided to enable the plaintiff to pass through the shaft without going under the hoisting apparatus, as is required by the provisions of section 128 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36). At the time of the accident the plaintiff had been employed but four days. The evidence justifies the conclusion that the person charged with the duty of giving him instruction with reference to his work and the risks likely to be encountered had failed to give such instruction, and there is no evidence tending to indicate that the plaintiff had any knowledge of the inefficiency of the signaling system. The case, therefore, does not come within those exceptional ones where contributory negligence becomes a question-of law, namely, where it has been so conclusively established by uncontroverted evidence that nothing is left, either of inference or of fact, to be determined by a jury. (See Kettle v. Turl, 162 N. Y. 255.)

The judgment should be affirmed.

Present — Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ.

Judgment of the County Court of Westchester county unani-. mously affirmed, with costs.  