
    Margaret Wendell, Plaintiff, v. Michael J. Leo, Defendant.
    Fourth Department,
    November 14, 1906.
    Master and servant — injury by fall down elevator shaft — erroneous nonsuit.
    In an action to recover for injuries to a saleswoman, who walked through an open elevator door and fell down the shaft, it is' error to grant a nonsuit when evidence is offered which would justify a finding that the elevator boy was accustomed to go about the store on errands, leaving the elevator'door slightly open so that any employee could enter and run the elevator to another floor; that the catch on the door was so defective that, the door did not stay shut, but would slide back and remain open; that at the time the accident occurred the. elevator boy had left the elevator, and the door being partly open another employee had entered the elevator and taken it to an upper floor, and that the defendant had notice of this custom and of the defective catch.
    A nonsuit granted solely on the ground that the defendant was free from negli- ; gence cannot be sustained on appeal .on the ground that, the plaintiff failed to prove freedom from contributory negligence.
    Motion by the plaintiff, Margaret Wendell, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division' in the first instance upon a nonsuit granted at the close of the plaintiff’s evidence on a trial at the Erie Trial'Term in November, 1905.
    
      W. B. Simson and W. H. Helwig, for the plaintiff.
    
      Maulsby Kimball, for the defendant.
   Williams, J.:

The exceptions should be sustained and the motion for a new trial granted, with costs tq the plaintiff to abide event.

The action i; to recover damages for injuries to the plaintiff alleged to have been caused by the negligence of the defendant. The nonsuit was granted for failure to show that the defendant was guilty of any negligence which caused the injuries.

The plaintiff was an employee in the defendant’s store. She had been engaged on the street floor, in fitting a skirt for a customer. She left the room where she was so engaged and went to tlie elevator to go to the third floor. She found the elevator dobr partly open, stepped through the door, and the elevator not being there, fell down the shaft to the basement, and received her injuries. The boy in charge of the elevator had left it, leaving the door a little open, and gone upon an errand. Another employee, during the boy’s absence, had entered the elevator and taken it to the third floor, leaving the door open, and through this open door the plaintiff went where she met with her accident.

The plaintiff claims that the defendant was guilty of negligence in permitting the elevator boy to leave the door open and go upon errands about the store, and in permitting the latch of the door to be so out of order that it would not catch when the door was drawn together, but would slide back and remain open, and that the accident and injuries were the result of these acts of negligence. There was evidence in the case from which the jury would have been justified in finding that the elevator boy had for some time been accustomed to leave the elevator and go about the store on errands, leaving the elevator door a little open, so that he or any other employee could open the door from the outside without unlocking it and enter the elevator, and that the defendant had actual or constructive notice of this practice of the boy; that on the occasion of the accident the boy had done this; that while he was absent, another employee had gone to the elevator, found the door open, entered the elevator and taken it to an upper floor; that the catch on the door had for some time been so defective that when the door was drawn together the catch would not, operate so as to hold the door closed, but would allow the door to slide back and remain open after the elevator had left the floor, and that the defendant had actual or constructive notice of this defective condition; that on the occasion of the accident, the employee when he took the elevator away from the street floor had closed the door, but the catch not operating to hold it together, it had slid'open again and remained open until the plaintiff found it so, walked through the opening and fell to the basement below. "Upon these findings of fact the jury might properly have found that these acts of negligence on the part of the defendant caused the accident, or were at least contributing causes to the accident, and that in the absence of them the accident would not have occurred. If the elevator boy had been required to remain at the elevator, or to safely lock the door when he left it, the door would not have been opened by the other employee and the elevator removed from the street floor. If the catch had been in .order so that when the door was drawn together it would have been securely fastened, then it would not have been open after the elevator was removed by the employee, and the plaintiff would not have entered it and fallen.

Whether the defendant was guilty of these acts of negligence, and whether they were the cause of the accident, or a contributing cause, without which the accident would not have occurred, were questions of fact for the jury, and should have been submitted to tliem by the court. The ruling of the court was ba'sed solely upon the failure of proof of defendant’s negligence, and should not be upheld on appeal for failure of proof of the absence of contributory negligence. The plaintiff was in a. hurry to serve defendant’s customer. She had to go to the third floor, make some changes in the skirt, and return. The customer was in a lmrry and was waiting. The day was dark and rainy; the locality of the elevator was not well lighted. She did see the elevator boy somewhere on the same floor, and away from the elevator, but he being on that floor she would be led to suppose the elevator was there also. She would expect him to come when' he saw she needed to use the elevator, and there was nothing apparently to lead her to suppose she could not safely step through the open door into the elevator. It does not appear she had any knowledge that the elevator boy was accustomed to leave the door open so that others could operate the elevator, and she did not know that the catch on the door was defective, and had never before approached the elevator when the door was open, and the elevator not there. Possibly if the court had been inclined to hold the evidence insufficient upon this branch of the case-, further evidence might have been given in support of her want of contributory negligence.

It should not be held on appeal that .though the nonsuit was put upon the.ground of failure to prove defendant’s negligence it may now be supported on the ground of failure to prove absence of contributory negligence on the part of the plaintiff. The case should be retried upon all the issues in the case.

All concurred. •

Plaintiff’s exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide the event. ' • •  