
    John Davitt, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—use by an employee of a ladder to reach the cellar of a building to which there was at another place an adequate stairway—when the employee assumes the risk of so doing.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the plaintiff was employed as a porter in the defend-" ant’s building and that he had a closet in the cellar of the building.in which he kept some tools; that there had originally been two stairways leading to the cellar, but that one of such stairways had been broken and had been replaced with an old ladder by third parties engaged in removing machinery from the building; that both the plaintiff and the defendant’s superintendent knew of the breaking of the stairway and the substitution of the ladder, but that the latter did not examine it, stating that those who had to go into the cellar could use the other stairway; that on the day in question the plaintiff, desiring to get some tools from the closet in the cellar, started down the old ladder which broke, because of which he sustained personal injuries. The plaintiff did not explain why he did not use the Unbroken stairway instead of the ladder. It was not a part of the plaintiff’s duty to go into the cellar except to obtain tools, and it did not appear that the defendant knew that the .plaintiff, had tools there or that it would be necessary for him to go into the cellar for that purpose.
    
      Held, that the plaintiff’s complaint should have been dismissed;
    That, as the defendant had never authorized its employees to use the ladder, when the plaintiff attempted to use the ladder he assumed the risk of so doing.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of December, 1904, upon the verdict of. a jury for $550, and also from an order entered in said clerk’s office on the 12th day of December, 1904, denying the defendants motion for'a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      John C. Robinson, for the respondent.
   Ingraham, J.:

The plaintiff was employed as a porter in a building owned, and used by the defendant on Sixth and Seventh avenues and Fiftieth and Fifty-first streets. He had been in the employ of the defendant for.nine years, and had been stationed in this building, for about six years before the accident. Prior to the 24th day of April, 1902, the defendant had changed its motive power from cable to electricity, and a. truckman employed by the persons to whom the defendant had sold the machinery theretofore used for its cable was engaged in removing it from the building. There was a cellar in the building to which there were two stairways, fifty or sixty feet apart, that had been-used by the employees of the defendant. The truck-man in removing this' machinery had broken one of the stairways leading to the cellar, and some of their employees had placed an old ladder that had been about the building for some time in this opening. The superintendent of tire defendant in charge of the building had been informed that the stairway was broken, and that this old ladder had been, placed in the opening, but had not examined it, as he said that those who had to go into the cellar could use the other stairway. It seems that none of the defendant’s employees were in the habit of going into the cellar except the plaintiff, who had a closet there in which he kept his: clothes and some tools which he occasionally used. While the truckmen were at work in moving this old machinery, and this old ladder was in the opening, the plaintiff was instructed by the defendant’s superintendent to break up some boxes, and wishing to get some tools for that purpose, he started to go to the cellar and get them from the closet that lie used there, He started down the opening in which the stairway had been broken, using the old ladder that had been placed there by the truckmen, the ladder broke and lie fell sustaining the injuries for which he has received a verdict.

The case was submitted to the jury upon the theory that the defendant was bound to provide its employees with a safe place to work, and with safe appliances to do the work, and the jury was instructed that if the defendant was negligent in the performance of its duty the plaintiff was entitled to a verdict. At the end of the testimony the defendant moved to dismiss the complaint on the ground that no negligence was shown on its part, and upon the further ground that the plaintiff had not shown his own freedom from contributory negligence. This motion was denied, to which denial the defendant excepted.

The plaintiff testified that he knew that this stairway had been broken, and that this old ladder, that had been about the building for some time, had been placed in the opening by one of the truck-man’s men. He did not testify that he did not know of the other stairway that was not broken, and which was a perfectly safe method in getting to the cellar, nor did he explain why he did not use the unbroken stairway instead of the ladder. He was not directed to go into the cellar, and it was not a part of his duty to go there, except to obtain tools to do the work he was instructed to do. There was no evidence that the defendant knew that he had tools there, or that to perform the work he was directed to do it was necessary to go into the cellar. This ladder was not placed in.this opening by the defendant for the use of its employees, nor did the defendant have any reason to suppose that its employees would use this ladder, which had been placed in this opening to the cellar by the truckmen for their own use in moving the old machinery. The plaintiff knew as much about this ladder as any one. He knew that the stairway had been broken, and that the ladder had not been placed there by the defendant, and there is no evidence to sustain a finding that this ladder was supplied by the defendant for the use of its employees or that they were justified in using it rather than the stairway that was provided to furnish access to the cellar and which was perfectly safe. I think it clear that the defendant • never authorized the use of this ladder by its employees, and that plaintiff when he assumed to use it with the knowledge that he had of the existing conditions, assumed the risk of it being a safe means of access to the cellar and that the defendant was not liable for its insufficiency.

It follows that the complaint' should have been dismissed, and the judgment and order appealed .from must be reversed and a new trial ordered, iyith.costs to appellant to abide the event.

O’Brien, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  