
    Minnie Oxelowitch, as Administratrix of the Goods, Chattels and Credits of Benjamin Oxelowitch, Deceased, Appellant, v. The Mayo Warehouse Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Labor Law, § 200 et seq.— action brought by administratrix to recover for death of her intestate — evidence—'building code of city of New York—negligence.
    Where, in an action brought by an administratrix under section 200 et seq. of the Labor Law to recover for the death of her intestate husband who while in defendant’s employ was killed from falling down an elevator shaft in the building occupied by defendant for its business, the evidence did not establish con-tributary negligence of decedent, and after section 95 of the building code of the city of New York which provides that: "In any building in which there shall be any hoistway or freight elevator or wellhole * * * the openings thereof through and upon each floor of said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trap doors as may be directed and approved by the Department of Buildings * * Such guards or gates shall be kept closed at all times, except when in actual use,” had been received in evidence, a duly qualified expert on the construction of elevators testified as a witness for plaintiff that in his opinion defendant’s elevator did not have a substantial guard or gate and did not have proper protection, it was reversible error to dismiss the complaint at the close of plaintiff’s ease on the ground that no negligence on the part of defendant was established.
    Defendant’s violation of the duty imposed by said section 95 was evidence of its negligence and established a prima facie ease.
    That plaintiff at least had made prima facie proof that the injury to her decedent was due to the negligence of defendant in supplying an unsafe and improper “way” within the purview of the Labor Law.
    Appeal from a judgment of the City Court of the city of New York, entered upon a dismissal of the complaint at the close of the plaintiff's case, and from, an order denying the plaintiff's motion for a new trial.
    Morris & Samuel Meyers (Samuel Meyers and Herman Druck, of counsel)., for appellant.
    Lyman A. Spalding (Theodore H. Lord, of counsel), for respondent.
   Page, J.

This is an action to recover damages for the death of one Benjamin Oxelowitch, caused by falling down an elevator shaft. At the trial it was proved that the decedent entered the employ of the defendant on October 30, 1911, and was assigned to the duty of assisting Forman D. Rankin in. the work of loading alfalfa upon a hand truck and wheeling it upon a freight elevator on the third floor of the premises, which was a six-story building, entirely occupied by the defendant for its business. The decedent was working under Rankin’s instructions. Together they loaded one truck and wheeled it upon the elevator. Rankin then took it down on the elevator to the ground floor and returned with an empty truck to the third floor. He and decedent loaded another truck, having left the elevator at the third floor. Rankin says he heard someone move the elevator to the floors above and told the decedent to wait until he brought it back again to the third floor, whereupon he left the truck full of alfalfa in the decedent’s hands and went around to another side of the elevator for the purpose of lowering it. While he was gone the decedent, evidently believing that the elevator was still at his floor, pushed the truck into the open well hole and fell with it to the pit below and was killed. The decedent spoke very little English and Rankin states that he does not know whether he understood him or not when he told Mm to wait until the elevator could be brought back to the third floor. The decedent had only been in the defendant’s employ about an hour when he was killed and had no opportumty to become familiar with the elevator and the method of operating it. Rankin admits that he gave the decedent no instructions or warmngs as to the danger of the open shaft. It was proved that the elevator was so constructed that any one o.n any of the other floors could raise or lower it to another floor unbeknown to those on the floor who might have been using it, and that such was the usual practice in that building. It was also shown that the elevator had no automatic gates, no automatic stops or locks and no automatic cover or drop board to cover the hole when the elevator was taken up to another floor, and that the shaft had no guard whatsoever except a small chain which could be stretched across the opening by any one on the" floor and which, as is shown by the photograph placed in evidence by the defendant, was very slack and could hardly have prevented an accident such as the one which occurred to the decedent, had it been in place, which does not appear positively, though there is some evidence that it was.

The plaintiff also placed in evidence section 95 of the building code of the city of New York, which states: In any building in which there shall be any hoistway or freight elevator or wellhole * * * the openings thereof through and upon each floor of said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trap doors as may be directed and approved by the Department of Buildings * * *. Such guards or gates shall be kept closed at all times, except when in actual use.”

A duly qualified expert on the construction of elevators was called by the plaintiff, who testified that, in his opinion, the defendant’s elevator did not have a substantial guard or gate and did not have a proper and safe protection.

The learned trial justice, on motion of defendant’s counsel, at the. close of the plaintiff’s case dismissed the complaint on the ground that no negligence was established. This was clearly erroneous. Violation of the duty imposed by section 95 of the building code was evidence of the defendant’s negligence and establishes a prima facie case. McRickard v. Flint, 114 N. Y. 222; Racine v. Morris, 201 id. 240. Furthermore, this action was brought within the provisions of the Employers’ Liability Act (Labor Law, § 200 et seq.), and the plaintiff at least made prima facie proof that the injury was due to the negligence of the defendant in supplying an unsafe and improper way ” within the purview of that act.

It is claimed by the respondent that the evidence established contributory negligence on the part of the deceased. I am of the opinion, however, that no contributory negligence, as a matter of law, was established, and that that question should have been reserved for the jury to determine in view of all the circumstances.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Lehman and Whitaker, JJ., concur.

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