
    Kate Kiernan, as Administratrix, etc., of John Kiernan, Jr., Deceased, Respondent, v. Otto M. Eidlitz and Robert J. Eidlitz, Appellants.
    First Department,
    December, 1905.
    Negligence — death by fall through unguarded elevator shaft—when negligence and contributory negligence questions for. jury,
    Though the negligence charged to the defendants be an undisputed failure to provide barriers protecting the shaft of an elevator used in the- construction of a. building, as required by the Labor Law (§ 20); the questions of defendants’ negligence and the contributory negligence of . the plaintiff’s intestate, and the assumption of the obvious risk by him-, are all for the jury. ..
    O’Brien, P. J., and Laughlin, J.: The. question of.contributory negligence only is for the jury. The defendant was negligent as a matter of law in failing to perform a statutory duty, -
    Appeal by the defendants, Otto, M. Eidlitz and another, from a judgment of .the’ Supreme Court in fav.oi’ of the plaintiff, entered in the office of the clerk of the county of Hew York on the. 14th day of -February, 1905, upon the verdict of a jury rendered by diréctioñ of the court, and also from an order entered in said clerk’s office on the 17th day of February, -1905, denying the defendants’ motion for a new trial made upon the minutes.
    
      Frank Verner Johnson, for the appellants.
    
      Joseph N. Tuttle, for the respondent.
   Houghton, J.:

The defendants had the contract to do the mason work of a certain building. Others had contracted to do the carpenter work and' plastering. Plaintiff’s intestate was a helper to the defendants’ masons. Them was an elevator shaft in the building, in which was an elevator used by defendants for the purpose of lifting materials used by them in the construction pf the building. At the time of the accident this elevator shaft was unguarded. A defective plank lay alongside of it, which broke as plaintiff’s intestate stepped upon it, and he fell to the bottom of the shaft, receiving injuries which resulted in his death.

This action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). At the conclusion of the case the trial court decided, as matter of law, that the defendants were negligent, that the plaintiff’s intestate was. not guilty of contributory negligence, and that he had assumed no risks incident to the absence of barriers about the elevator shaft which prevented the plaintiff from recovering. Against the defendants’ protest and request that these questions be submitted to the jury, he directed that they pass only upon the question of damages. We think the facts proven involved all of these questions, and that the court erred in taking from the jury any one of them. The issues involved in proof of negligence and of contributory negligence are peculiar to themselves. Whether or not, in any case, the trial court has tike right to decide, as matter of law, that given facts establish negligence or lack of contributory negligence, and thus take those questions from the jury and permit them to pass only upon the amount of damage sustained, we are not disposed now to determine. It certainly is not the usual practice. It is sufficient for the present case to say that questions were presented which were for the jury alone.

The view of the court below was that negligence was conclusively established by showing a lack of compliance with section 20 of the Labor Law, which'provides that “if elevating machines or hoisting apparatus are used within a building in the course of constru'ction, for the purpose of lifting materials to be used in such construction, the contractors or. owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by a barrier at least •eight feet in height.” (Laws of 1897, chap. 415, § 20, as amd. by Laws of 1899, chap. 192.) Our attention is not called tq the decision of any appellate tribunal holding that a violation of this or. similar statutes or ordinances establishes conclusively, as matter of law, negligence on the part of the violator. In. the récén.t case of Marino v.Lehmaier (173 N. Y. 530) a statutory provision of similar import was under consideration', and the authorities were exhaustively reviewed, and the conclusion reached that a violation raised only a. question of fact from which' a jury might determine negligence.

It is not every contractor engaged in the construction of a building, who lifts material to be used therein, that is liable for the absence of a barrier, for the situation may be such as-to require the owner himself to erect and 'maintain a barrier. (Rooney v. Brogan Construction Co., 107 App. Div. 258;, Koch v. Fox, 71 id: 288.) So, one contractor might be guilty of violation, of the statute, and another in the same building not guilty. But however this may be with respect to the defendants, there remained the questions to be determined, of the contributory negligence of the plaintiff’s intestate and the assumption of obvious risk by him. The fact that the action is brought under the .Employers’ Liability Act eliminated neither of these questions. Both-still remain, whether the action be under section 1902 of the Code of Civil Procedure or under.the Employers’ Liability Act, and both under the facts disclosed by the record became questions for the jury to determine.

The judgment and order should be reversed, and a new trial granted, with costs to the appellants to abide the event. ’ >

Ingbaham and McLaughlin, J J., concurred.

O’Brien, P. J. (concurring):

I concur in the result on' the ground that the question of contributory negligence was a question of fact for the jury. But 1 do not concur in the view that the question of the defendants’ negligence was involved; thinking as I do that this is a statutory liability, and that upon failure to comply with the statute the defendants are liable as a matter of law.

Laughlin, J., concurred.,

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