
    John H. Pepper, Appellant, v. Glass Bakery, Incorporated, Respondent.
    Third Department,
    March 14, 1913.
    Master and servant — negligence —injury to employee by falling down unguarded elevator shaft — evidence — erroneous nonsuit.
    Action brought both under the common law and under the Employers’ Liability Act, to recover for injuries sustained by the plaintiff while working for the defendant in its bakery by falling down an unguarded elevator shaft. Evidence examined, and held, that the questions of the defendant’s negligence and of plaintiff’s freedom from contributory negligence were for the jury, and that a-nonsuit at the close of plaintiff’s evidence should not have been granted.
    Appeal by the plaintiff, John H. Pepper, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 10th day of June, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Saratoga Trial Term.
    
      
      Edgar T. Brackett, B. P. Wheat and Harold H. Corbin, for the appellant.
    
      L. B. McKelvey, for the respondent.
   Lyon, J.:

The plaintiff was injured between midnight and one o’clock on the morning of May 28, 1911, while working for defendant, in its bakery in Saratoga Springs, by falling down an elevator shaft from the first story to the basement floor. He commenced work for defendant the night of May 24, 1911. His main employment during that night was carrying bread from the ovens, which were situated on the first floor, into an adjoining room where the bread was packed for shipment. He next worked for defendant the night upon which he received the injuries complained of, his hours being from seven p. m. to five A. M. From nine or ten o’clock in the evening up to the time of the accident he worked with and under the direction of the president and general manager of defendant, who had full authority of superintendence, in putting in new grates, cleaning the flues and repairing the inside work of the ovens. In performing this work he was obliged to place his head and arms inside the ovens from which the fires had been pulled about seven o’clock, in the evening, obtaining the light with which to see to do his work from a portable electric bulb placed inside the oven doors. Immediately preceding the injury he was directed by the general manager to go into the basement and get brick and mortar with which to brick up the flues; he thereupon left the ovens and passed northerly, a distance of about twenty-one feet, to an inclosure about twenty-six feet square constructed in the center of the room, which contained the freight elevator shaft, which ran from the second floor to the basement, and also contained the stairway which adjoined the elevator shaft at the right, and extended from the first floor to the basement. Upon the southerly side of this inclosure were doorways side by side, similar in appearance, one of which opened into the elevator shaft and the other into the stairway, which was separated from the elevator by a thin partition, the doorway openings being about one foot apart. The space between the ovens and the elevator shaft was lighted by a single electric bulb of sixteen or thirty-two candle power, hanging five or six feet "from the floor, and about fourteen and a half feet from the elevator door, which, owing to an accumulation thereon of flour and dust, but dimly lighted the space between the ovens and the elevator shaft. The opening made by the elevator shaft through the floor was entirely unguarded upon the occasion in question, the door through the side of the inclosure, by which the elevator was reached, being wide open and swung around in front of and entirely hiding the stairway opening. The plaintiff’s eyes being affected by facing the light of the electric bulb within the oven, and he seeing but indistinctly the single opening which appeared dark, as there was no light in the basement, and never having been warned about the elevator, and with his mind on his work, and thinking he was entering the stairway, stepped through the open doorway and fell to the basement floor, sustaining the injuries, to recover damages on account of which this action has been brought. It appears from the evidence that during from two to four weeks in the month of May or June of the preceding year the plaintiff had worked in defendant’s bakery, and had handed articles up through the elevator opening, and had gone up and down this stairway perhaps fifty times, according to his estimate, with the construction the same as on the night of the accident, but that he did not go up and down the stairway upon the night of the accident, nor during the night of the twenty-fourth.

The plaintiff sets up causes of action under the common law as well as under the Employers’ Liability Act (Labor Law [Oonsol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352), notice of injury having been duly served. At the close of plaintiff’s evidence the'court granted the motion for a nonsuit, thereby entitling the plaintiff upon this appeal from the judgment entered thereon to the benefit of the most favorable construction of the evidence and to all inferences reasonably to be had therefrom.

Under the foregoing facts, which seem to be fairly deducible from the evidence, we think that the questions of defendant’s negligence and plaintiff’s freedom from negligence were for the jury to determine, and hence that the judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event. The particular finding of fact of which the court disapproves is the finding that the defendant was not guilty of negligence and that the plaintiff was guilty of contributory negligence.  