
    Charles Fink, Respondent, v. Hartog and Beinhauer Candy Company, Appellant.
    Second Department,
    April 20, 1906.
    ¡Negligence—injury to employee from walking into elevator shaft in daylight.
    A person who walks into an open elevator shaft in daylight is guilty of negligence.
    The testimony of a plaintiff, that, after leaving a freight elevator on a level with the floor, he started to draw a' truck onto it, and in walking forward fell into the open shaft is improhahle, and when two witnesses have testified that plaintiff was walking backwards, and another that at the time of the accident the elevator was standing at the floor above, a judgment for the plaintiff will be reversed.
    
      Appeal . by the defendant, the Hartog and Beinhauer Candy. Company, from a judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county óf Kings on the 6th day of May, 1905, upon the verdict of a jury for $7,500, and also from an .order entered in said clerk’s office on the.23d day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes. ' ■ ' ■
    The action is for damages for personal injuries. The'plaintiff worked for the defendant in its candy factory, and fell through the elevator shaft from the third floor to the cellar. It was a slow freight elevator,' and was moved by any one who used it by means of cables running up and down through it. ■ ■
    
      L. Sidney Carrere, for the appellant.
    
      Edward J. McCrossin, for the respondent.
   Gaynor, J.:

The plaintiff testified that he went up alone from the ground floor to the third floor by the. elevator with a hand truck - to ,get some boxes of candy; that he stopped the elevator and wheeled his-truck off some considerable distance to the middle of the floor and loaded it; that he then "pulled it over to within four or five-feet from the elevator; noticed that-the elevator platform was about an inch above the room floor, and went upon it and let it down level with the floor; that it stopped there, and he immediately stepped off and took hold of his truck and pulled it to the "elevator to go upon it, but instead went down the open shaft, the elevator having meanwhile gone up; that he did not' go backwards in "pulling the truck, but forwards to the elevator. The accident happened in day. light, and the elevator could be seen without difficulty. The plaintiff’s brother, a fellow-workman, corroborated him.

For the plaintiff to walk into the open shaft in this way Was. plain negligence. The case of Dieboldt v. United States Baking Co. (72 Hun, 403) seems to be applicable.

The plaintiff’s brother and -another fellow-workman testified- that ■the elevator would sometimes when standing start and go up to the top or' down to -fhe bottom of its own accord, bécausé óf a defect. Even so, the plaintiff walked right into the open shaft,'according to his own story..

But the evidence for the plaintiff’s side is not only inherently improbable, but most seriously contradicted. A girl working on the same floor testified that when the plaintiff had loaded his truck he went backwards pulling it all the way over to the elevator shaft and into it without stopping, meanwhile looking at her and singing a song to her. A member of the defendant testified that, he came up in the elevator with .the plaintiff, let him off at the third' floor, and then continued on to a floor above, where he left the elevator to have some freight put on it. He came down by the stairs to the third floor and saw the accident. He corroborated the girl as to how it happened.

The judgment should be reversed on the law and the facts.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Judgment reversed and new trial 'granted, costs to, abide the event.  