
    Elizabeth McCauley, Pl’ff, v. Abram S. Smith et al., Def’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Master, and servant—Negligence.
    Plaintiff’s intestate was employed by defendants to work for them, and on the following morning went there to commence. The porter opened the trap door of a hoistway which was so arranged that when the trapdoors were down the outer doors could not be opened, and the intestate while getting his overalls from a pile of wool which lay on the closed portion of the trap-door fell down the hoistway and was killed. It was a dark morning, and there was no gas light near the hole, nor any railing around it. Held, that a case was made for the. jury, and it was error to dismiss the complaint.
    Exceptions ordered heard at the general term in the first instance after dismissal of the complaint
    
      Charles J. Patterson, for pl’ff; Hubbard & Rushmore and John D. Pray, for def’ts.
   Barnard, P. J.

—The defendants kept a storage warehouse in New York city under the arches of the New York and Brooklyn bridge. The plaintiff’s intestate was an employee of the deféndants, and on the 7th of January, 1891, fell into an open hoistway upon the premises of the defendants, and was killed. The deceased had been employed the night before and had left his overalls on a pile of wool in the building. In the morning the defendants’ porter, after his arrival to go to work, was told to go up stairs to be undressed ready for work. The porter then went to open the doors. The hoistway in question is near these (rear) doors, and the trap-doors which cover the hoistway are so made that when closed they prevent doors from opening. The porter lifted the trap-doors one-half at a time. The wool was on the half which was not raised. The overalls were on the pile of wool standing on the part of the latch not lifted. At this stage of the proceedings the deceased fell through the opening. It was a dark morning, and there was no gas light near the hole; there was no railing around it. A case was made to go to the jury. The master was bound by law, chapter 566, Laws of 1887, to protect the opening by a substantial railing or with good and sufficient trap-doors,, such railing and trap doors to be kept closed at all times except when in actual use. The employee had the right to assume that the master had done his duty, and it is subject to the performance of the master’s duty that the employee assumes the risks of the employment. The hoistway was not in actual use, but was opened only to permit the doors of the building to be opened; presumably on the night before there was no appearance of danger. It was for the jury to say if the protection required by the statute was given. The question of the negligence of the deceased was one for the jury, if the master was guilty of negligence which caused the accident. This is the general rule unless the evidence is very plain. In this case there was evidence from which a jury could find the deceased to have been free from all lack of care and prudence in protecting himself from injury.

The exceptions should be sustained and a new trial granted, costs to abide event.

Dykman, J., concurs; Cullen, J., nor sitting.  