
    Phillip Rosenberg, an Infant, by Morris B. Rosenberg, his Guardian ad Litem, Respondent, v. Louis Schoolherr, Appellant.
    First Department,
    December 7, 1906.
    Negligence — injury on freight elevator — judgment for plaintiff affirmed.
    When it appears that the plaintiff, an employee of the tenant of a building containing a freight elevator, while engaged in transporting freight was injured by reason of his foot projecting through an opening broken through the slats which inclosed the elevator, and it is shown that the owner of the building had notice of the defect and assented to his tenant’s employees riding on the elevator, he is liable for damages sustained.
    Although an owner may be under no obligation to protect the sides of a freight elevator by slats, if he u ndertnkes to do so he is bound to keep the slats in repair. McLaughlin and Houghton, JJ., dissented, with memorandum.
    Appeal by the defendant, Louis Schoolherr, from a judgment of the Supreme Court in favor of the pláintiff, entered, in the office of the clerk of the county of New York on the 13th day of November, 1905, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 25tli day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles Melville Weeks, for the appellant.
    
      Charles W. Sinnott, for the respondent.
   Scott, J.:

The defendant is the owner of a building in New York city having two entrances, one on "Wooster street and one on Spring street. There are two elevators, the- one on the Spring street side being distinctly a passenger elevator, and the one on the Wooster street side being a freight elevator for the use of the tenants in the building in sending out and receiving packages of merchandise. Two sides of the elevator were composed of perpendicular slats of wood running from the top to the bottom, each slat being almost three inches . wide, and the space between them being about two inches. On the day of the accident the lower parts of two of the' slats had been broken out, leaving an unprotected opening measuring thirteen and one-lialf inches in width by thirty-eight'inches in height from the platform of the elevator.' The plaintiff, a lad about seventeen years of age,-was employed as a shipping clerk by his unjcle, a tenant in the building. On the day of the accident, having occasion to deliver a package to „an expressman, he and two others of his uncle’s employees with the expressman got into the elevator with a large package of goods. They arrived safely at the ground floor, but were compelled to ascend again with the package because the expressman complained that it was insecurely boxed. It was. about, half-past five on a September afternoon and the elevator and shaft Avere pretty dark, there being no artificial light." The plaintiff did not see 'the. hole in the slats, and did not know of its existence. After the jiackage had been replaced on the elevjator he entered, and stood beside it.- As soon as the car 'started he cried out,, and when it was stopped, as it immediately was, it was found that his foot had been caught between, the car and the wall and badly crushed, producing injuries of a serious nature. There can be no doubt that, these injiu-ies resulted from [his having inadvertently allowed his foot to protrude outside the car through the hole above referred to, and it is certain that if the hole had not been there and the slats had been whole and in good condition the accident would not llave happened. Much stress is laid upon the fact that this elevator was distinctively and obviously a freight elevator and ¡that the building was also equipped with, a passenger elevator. It al'feo .appeared that the fact of the existence of the passenger elevator was advertised by a notice upon the iron door of the freight elevator shaft. It appeared, however, beyond reasonable dispute that this freight elevator was not only necessarily used by employees of the tenants in receiving and delivering goods, but that it was also constantly used by such employees as a means of going up and down to and' from their work, and this with the knowledge of and, without serious objection; if any, from defendant’s servant in charge of the eleva- ■ tor. Indeed one witness testified that the employees were not permitted to use the passenger elevator; It is perfect!y well established that the owner of a building containing a freight; elevator, where the building is let to various tenants and the elevator is under the control of the owper, owes it to those whose business requires them to use the- elevator and to those whom he permits- to use it, to see. '-'that the elevator is so maintained as to be- reasonably safe for the-uses to vyhich it is put. (Grifhahn v. Kreizer, 62 App. Div. 413; Weinberger v. Kratzenstein, 71 id. 155.) The evidence of notice to the owner’s agent of the defect in the elevator is complete. It may be that the owner was under no obligation to inclose the elevator wholly or partly by slats, and that if it had been uninclosed the plaintiff would have had to watch out against permitting his foot to protrude. __ The owner had, however, seen fit to thus inclose the two sides, and, therefore, as to them he offered apparent security against such an accident as befell the plaintiff. His negligence consisted in permitting this apparent safeguard to become out of'order so that instead of affording security it constituted a trap. In our opinion the owner failed in this regard in his duty to keep the elevator reasonably safe for those who were rightfully using it.

The judgment and order should be affirmed, with costs.

Ingraham ' and Clarke, JJ.,- concurred; McLaughlin and Houghton, JJ., dissented.

McLaughlin, J. (dissenting):

The evidence is insufficient to sustain a finding that the plaintiff’s injuries were due to defendant’s negligence. It is also insufficient to sustain a finding that the missing slats were the proximate cause of injury.

I, therefore, dissent.

Houghton, J., concurred.

Judgment and order affirmed, with'costs. Order filed.  