
    Parker P. Nichols, as Administrator, etc., of Robert K. Nichols, Deceased, Respondent, v. Searle Manufacturing Company, Appellant.
    Third Department,
    September 15, 1909.
    Master and servant—negligence — injury by elevator — contributory negligence.
    Where the elevator in a factory, consisting of two stories and a basement, where about 400 persons were employed, had no attendant and was operated by a cable which could be pulled by any one to bring the elevator to the desired floor and it appears that this was done without any signal to persons who might be using the elevator at another floor; that the entrance to the elevator was protected by automatic gates which ascended as the elevator approached and descended as it left the floor, a finding that the master was negligent in not providing some rule or system which would prevent the simultaneous operation of the elevator by employees on different floors of the building is justified.
    Evidence in an action for the death of a servant found dead on the floor of such elevator with his skull crushed examined, and held, insufficient to show freedom from contributory negligence.
    Although less evidence of freedom from contributory negligence is required where an accident causes death and no one saw the occurrence, nevertheless, there must be some evidence which tends legitimately to prove the fact. Where the elevator was directly under the control of the deceased so that the accident might have been caused by his acts, freedom frqm contributory negligence cannot be inferred from the nature of the accident itself.
    Appeal by the defendant, Searle Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 15th day of January, 1909, upon a verdict of the jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Rosendale & Hessberg [Murray Downs of counsel], for the appellant.
    
      Holmes & Bryan [John B. Holmes of counsel], for the respondent.
   Cochrane, J.:

The plaintiff has recovered a verdict for the negligence of the defendant in causing the death of his son sixteen years of age. The defendant is engaged, in the business of manufacturing collars and cuffs in the city of Troy, and had in its employ at the time of the accident about 400 servants. The plaintiff, as one of such servants, was killed in an elevator.

The building in which defendant conducted its operations consisted of two stories and a basement. The elevator traveled in a shaft extending from the basement to the second story. It had no attendant and was operated by a cable. Whenever any one had occasion to use the elevator he would pull the cable up or down as the case might be, and thus bring the elevator to the desired floor. This was done without any signal or warning to any one who might chance to be using, the elevator at one of the other floors. The floor of the elevator was about five feet square, and its entrance'was protected by automatic gates at each floor of the building, which ascended as the elevator approached and descended as it left such floor. The gates would raise to their full extent, seven feet, and as the elevator ascended it would meet the descending gate three or four feet above the floor of the building.

The duty of the deceased was to sweep the main floor of the building, deposit the sweepings in a box about two or three feet in dimensions, place the box on a truck with wheels, roll the trucic with the box on the elevator, pull the cable so as to cause the elevator to descend, walk downstairs into the basement and there deposit the sweepings in their proper place.

There was no eye-witness to the accident. The last seen of the deceased alive was in the basement, when he put the truck on the elevator and went upstairs. Shortly thereafter his body was found lying on the floor of the elevator, with his feet extending outwardly and hanging below the elevator floor. The elevator had gone above the main floor of the building and above the gate, which had automatically lowered and was in its proper position. It is the claim of the plaintiff that the deceased was caught and crushed between the elevator as it ascended and the descending gate. He had evidently been struck a violent blow on the head. The top of his skull and part of his brains were found in the basement below.

I think the evidence justifies the inference that the defendant was negligent in not providing some rule or system which would prevent the attempted simultaneous operation of the elevator by different employees on different floors of the building. It is clear that an accident might happen to one employee properly using the elevator by the efforts of another employee to operate it at the same time from another floor. And considering the large number of employees and the extensive nature of the defendant’s business, it should have taken appropriate steps to guard against such a contingency.

But the difficulty with the plaintiff’s case is that no connection has been shown between such negligence and the accident; neither does it appear that the deceased was free from contributory negligence. The elevator at the time of the accident was subject to his own operation or manipulation. The only narrative of his conduct is given by a witness called by the plaintiff, who testified that a minute or two before he heard of his death he saw him in the basement witli the truck. The witness says: “I saw him put the truck on the elevator and ascend upstairs.” If by this statement the witness meant that the deceased rode upstairs on the elevator he was guilty of contributory negligence, for the evidence shows that he was' under specific instructions not to ride on the elevator. If, however, we assume that he walked upstairs after depositing the truck in the elevator, as it was his duty to do, we are then left entirely in the dark as to his conduct on reaching the floor above. It was his duty to there stop the elevator as it approached that floor. Whether inadvertently he allowed it to pass the level of the floor and was killed in a procrastinated effort to stop it or whether in some other manner due to his own heedlessness he met his death we are unable to say. The jury could not say, but could merely speculate and conjecture. It might throw considerable light on the casualty if plaintiff had informed us whether or not the truck was found on the elevator floor with the body of the deceased, for we might then draw an inference as to whether he had brought the elevator to a stop and removed the truck before the accident happened. But if such were the case, even then the question would arise as to what duty could have called him to the elevator after the removal of the truck. The whole case is surrounded with doubt and conjecture, and it cannot be said that the unfortunate accident was due solely to the negligence of the defendant.

The rule requiring proof of freedom from contributory negligence is relaxed to the extent that less evidence is required where the victim of the accident has lost his life and no one saw the occurrence. But, nevertheless, there must be some evidence which tends legitimately to prove the fact. In this case there is an absence of any evidence on that point. As we have seen, the plaintiff has not even placed us in possession of facts susceptible of proof. Moreover, this is not a case where freedom from contributory negligence can be inferred from the nature of the .accident itself, for the reason that the operation of the elevator was directly under the control of the deceased, and upon his acts in the management of 'the same the accident may have depended, and it was necessary to show, not necessarily by direct evidence, but by circumstances having at least some probative force, that it ivas not his act or omission which brought upon himself the unfortunate fatality.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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