
    George Krey, Adm’r, App’lt, v. Charles Schlussner, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    .1, Negligence—Elevator.
    Plaintiff’s intestate, a boy, while raising goods on an elevator in defendant’s house, standing beneath to do so, was injured by the fall of the elevator, caused by the breaking of the rope, so as to cause his death. 
      Held, that he had a right to rely on defendant having performed his duty to have the elevator in sale condition, and that the fact that he stood below it was not contributory negligence.
    3. Same—Evidence.
    A servant girl was asked what it was that made the elevator go down, and answered because he was hanging on it. Held., that this answer was not called for by the question and should have been stricken out.
    Appeal from judgment dismissing the complaint of the plaintiff and awarding costs to the defendant
    Plaintiff’s intestate, Adam Krey, was a boy of fifteen, employed by Frank A. Bundschuh, a butcher, to carry out orders and to-help around the store, for which he received twelve dollars a. month and his board. On the 19th day of July, 1890, about four o’clock in the afternoon, he was sent by his employer to deliver meat to the defendant, who owned, resided and kept a drug store at No. 644 Bedford avenue, Brooklyn. It was a four-story flat house. He resided in the first flat. There was running from the cellar to the roof an elevator shaft, in which was a dumbwaiter, used and constructed for the purpose of taking groceries, meat, coal and wood from the cellar to the occupants of the various flats. This dumbwaiter was raised by means of a rope passing from the elevator box over a pulley in the roof. To gain access to the elevator from the street it was necessary to go-into the cellar, and from there things were raised to the floors above. On the day in question Adam Krey, deceased, went into the cellar and placed the meat given him by his employer to be: delivered to defendant on the elevator, and raised it to the floor on which defendant lived, and while doing so, and while the meat was being removed, the elevator fell and struck him, causing his death. The fall of the elevator was caused by reason of the rope to which it was fastened being worn out, rotten and unfit for use. Gieorge Krey, the father of deceased, and who received his wages and earnings, was appointed his administrator, and commenced this action to recover, under the statute, damages for the negligence of the defendant in permitting said elevator to be and to remain in an unsafe and dangerous condition, thereby causing the death of his intestate.
    The defendant, in his answer, admitted all the material allegations of the complaint, except that he denied that the elevator or dumbwaiter fell through the fault, negligence or carelessness of the defendant, and alleged that the negligence of deceased, caused or contributed to the accident.
    On the trial defendant’s servant was asked:
    “ Q. What was it that broke that made the dumbwaiter go-down.” Her answer was: “ Because he was hanging on to the dumbwaiter.”
    Plaintiff asked to have this answer stricken out, which request was denied.
    
      A. H. Dailey, for app’lt; John R. Reid, for resp’t
   Pratt, J.

The testimony clearly showed that the elevator rope was so worn that its insufficiency would have been apparent upon even a casual inspection.

The defendant owed a duty to all persons whom he invited to use it to see that it was maintained in a reasonably safe condition. In that duty he failed and upon that branch of the case a verdict would properly have gone against him.

The question whether the deceased was guilty of contributory negligence must be considered in view of the duty of plaintiff.

Deceased had a right to rely upon defendant having performed the duty cast upon him by the law, viz.: to have the elevator in a safe condition. Had it been in such condition the act of deceased in standing below it when working it would not have exposed him to danger. Worked from below, as its construction required, it is not easy to see how the operator could be free from ■danger if the rope was defective. Had the rope been sound, as deceased had a right to presume, danger would not have existed. We do not see that deceased can be said to be responsible for the injury he received. Being young, had his conduct not been marked with the. care to be expected from an older person, a less degree of caution would have satisfied the law. 67 H. Y., 417 ; 83 id., 620.

Various questions were put to an expert witness which were -excluded. We are inclined to think they were admissible; but the conclusion already expressed renders it needless to discuss them at length.

The opinion which defendant’s servant was allowed to express .as to the cause of the rope breaking was not called for by the question and should have been stricken out. Its retention was error that, by itself, would require a reversal.

Judgment reversed, new trial ordered, costs to abide event.

Barnard, P. J., and Dykman, J., concur.  